Haryana

Panchkula

CC/288/2015

INDER DEV. - Complainant(s)

Versus

DEEP COMMUNICATIONS &OTHERS. - Opp.Party(s)

COMPLAINANT IN PERSON.

04 Aug 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.

                                                                            

Consumer Complaint No	:	288 of 2015
Date of Institution	:	23.12.2015
Date of Decision	:	04.08.2016

 

Inder Dev S/o Sh.Ram Khilawan, R/o House No.1282, Ward No.8, Indira Colony, Sector-17, Panchkula.

                                                                                        ….Complainant

Versus

 

1. Deep Communication, SCO No.46, Shop No.307, Canam Plaza, Sector 11, Panchkula through its authorized signatory.
2. Lava International Ltd., A-56, Sector-64, Noida-201301 (UP), India through its authorized signatory.
3. Home Credit India Finance Private Ltd., Registered and Corporate Office, Third Floor, Tower C, DLF Infinity Tower, DLF Cyber City, Phase II, Gurgaon (Haryana) through its authorized signatory.

 

                                                                        ….Opposite Parties

 

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.S.P.Attri, Member.

 

For the Parties:     Complainant in person.

                             None for the Op No.1

              Mr.Mukhbir Singh, Adv., for the OP No.2.

              Mr.Nitin Grover, Adv., for the Op No.3.

 

ORDER

(Dharam Pal,  President)

 

1. The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 with the averments that he purchased a Lava Z1  Mobile handset vide IMEI No.911452702454654 and 911452702505158 on 14.09.2015 from the Op No.1 for an amount of Rs.7520/- vide bill No.11644 after getting financed from Home Credit with warranty of one year. At the time of purchase, OP No.1 told the complainant to get the handset insured. Op No.1 assured the complainant that the set was all right and it would work effectively. The OP No.1 also assured that if the handset developed any defect, the same would be collected by the agent of the insurance company and after getting it repaired on their own cost would deliver the same to the complainant. At the time of purchase of handset, the complainant paid Rs.1020/- as first installment and Rs.780 as insurance charges but the Op No.1 did not issue any insurance receipt. Unfortunately, after few days of its purchase, the handset started giving problem. The complainant approached the Op No.1 who told him to handover the handset to him and it would get it repair at his own level at his own cost as the handset was within warranty and directed him to collect the handset in the evening. In the evening, the complainant visited the Op No.1 to collect his handset but the OP No.1 demanded Rs.450/- as repair cost. The complainant disclosed the Op No.1 that the handset was within warranty period but the Op No.1 threatened him by stating that if he wanted the handset back, he had to pay the amount otherwise he would never return the same to him. Therefore, the complainant paid the amount of Rs.450/- under protest. Thereafter, the complainant kept on paying the installments to Op No.3 regularly and paid Rs.4,080/- to Op No.3. On 18.12.2015, a friend of the complainant told him that MRP of handset on the packing box was Rs.5999/- and the OP No.1 charged Rs.1521/- in excess from him than the MRP. Thereafter, the complainant approached the Op No.1 and demanded the insurance receipt and asked the reason for charging excess charge of Rs.1521/- than MRP but the OP No.1 started abusing & further threatened him and threw the handset on floor which was damaged. This act and conduct on the part of the Ops amounts to deficiency in service. Hence, this complaint.
2. The Op No.1 appeared and filed written statement. It is submitted that the complainant approached the Op No.1 for purchase of a mobile handset on finance. It is submitted that the Op No.1 told the complainant all the formalities for purchase of handset on finance. It is submitted that the complainant purchased a handset Lava Zi for an amount of Rs.5900/- and also purchased a sandisk SPU 10 3293 & memory card for an amount of Rs.1020/-. It is submitted that on asking of the complainant for insurance, the Op No.1 told him about the insurance of Syska Company for Rs.600/-. It is submitted that the complainant stated that he has only down payment on this the employee of Home Credit suggested him for power bank accessory and the complainant accepted the same. It is submitted that mobile cost was Rs.5900/- + memory card Rs.1020/- + Power Bank as insurance cost was Rs.600/- which came to Rs.7520/- in which down payment was Rs.1700/-. It is submitted that after some days, the complainant approached the OP No.1 with a complaint that the handset fell in to water on this, the Op No.1 suggested him to approach the office of insurance i.e. Booth No.81, Sector-15 & registered a complaint and thereafter, approached the service center on this he had to pay no amount. Further the complainant stated that he has no time to go there and after checking the handset, the engineer of OP No.1 told the complainant that he would have to pay Rs.450/- for repair and the complainant gave his acceptance.  Thus, there is no deficiency in service on the part of Op No.1 and prayed for dismissal of complaint.
3. The Op No.2 appeared and filed written statement by taking some preliminary objections and submitted that the present complaint is not maintainable against the Op No.2. It is submitted that the complainant never approached the Op No.2 regarding any issue and this complaint is related to Ops No.1 and 3. It is submitted that the Op No.1 is not an authorized dealer of Op No.2 and the Op No.3 is a Finance Company and there is no relation between the Op No.2 and the Op No.3. It is submitted that the Op No.2 is a renounced company and has established a number of service centers all over the country to provide after sale services to its customers. It is submitted that the company provided one year warranty and warranty means repairs not replacement. It is submitted that the Op No.2 is a renowned company in Electronic Products and Commodities and is manufacturing Electronic products for the past several years. It is submitted that the technology used by the company in manufacturing the World Class Electronic Products is highly sophisticated. It is submitted that the complainant has not submitted any expert opinion. It is submitted that if the handset was not working, it is required to check by the proper analysis by the appropriate laboratory as per section 13(1) (c) of the Consumer Protection Act. Thus, there is no deficiency in service on the part of OP No.2 and prayed for dismissal of the complaint.
4. The Op No.3 appeared and filed written statement by taking some preliminary objections and submitted that the present complaint is not maintainable as OP No.3 neither a necessary party nor proper party to the present complaint. It is submitted that the present complaint is against Op No.1 as it charged an excess amount of Rs.1521/- towards cost of mobile and Rs.450/- towards cost of repair and the Op No.1 has also not issued the insurance slip to the complainant. It is submitted that neither any allegation nor any relief has been sought against the Op No.3. It is submitted that the Op No.3 has only provided the loan facility to the complainant on the basis of duly executed documents. It is submitted that the complainant approached the OP No.1 to purchase the mobile alongwith memory card on 14.09.2015 vide bill dated 14.09.2015 and opted a finance scheme to purchase the mobile & memory card vide application dated 14.09.2015 (Annexure R3/3) which was duly signed by the complainant after going through the contents of the application form. It is submitted that after considering the application and other facts, the loan amount was sanctioned by the OP No.3 vide sanction letter dated 14.09.2015 (Annexure R3/4). It is denied that the complainant had paid Rs.1020/- on account of 1^st installment to the Op No.3 at the time of sanction of letter. It is submitted that as per the sanction letter, the complainant paid Rs.1401/- + processing fee of Rs.299/- i.e. total Rs.1700/-. It is submitted that the down payment is a part of a commodity which the complainant paid directly to Op No.1. It is submitted that at the time of loan sanction, the complainant has paid an amount of Rs.299/- to Op No.3. It is submitted that the clause 5 of the sanction letter is as under:-

“5.     If the borrower is not satisfied with the terms and conditions of this loan, he/she may terminate this loan agreement by repaying the Outstanding Balance of Loan Amount to HCIN within 15 days from the date of this Sanction Letter/Loan Summery. No Prepayment Penalty shall be charged to the borrower in such case, however, the processing fee shall not be adjusted against the Outstanding Balance. After 15 days from the date of Sanction Letter, any prepayment/foreclosure of loan shall be at the sole discretion of HCIN and subject to the specified conditions and payment of prepayment penalties by the Borrower.”

It is submitted that after availing the loan facility, the complainant is bound by the terms and conditions of the sanction letter. It is submitted that the Op No.3 being NBFC have adopted the fair Practice Code (FPC) issued by the RBI. It is submitted that in compliance of FPC, the Op No.3 have declared all the necessary information in the application form as well as in the sanction letter. It is submitted that the Op No.3 have also declared all the information like amount of loan applied by the customer care free, processing charges, late payment amount, monthly customer care free, processing charges, late payment charges and other penalties in the sanction letter alongwith the terms and conditions. It is denied that the complainant is an illiterate person. It is submitted that the Op No.3 has financed to complainant at 0% interest. Thus, there is no deficiency in service on the part of OP No.3 and prayed for dismissal of the complaint.

5. The complainant tendered evidence by way of affidavit Annexure C-A and documents Annexure C-1 to C-5 and closed the evidence. The Op No.1 has not tendered any evidence after availing many opportunities and the evidence of the Op No.1 closed by court order vide order dated 13.06.2016. The Op No.2 tendered evidence by way of affidavit Annexure R2/A and closed the evidence. The OP No.3 has tendered evidence by way of affidavit Annexure R3/A alongwith documents Annexure R3/1 to R3/8 and closed the evidence.
6. We have heard the complainant appearing in person and learned counsel for the Ops No.2 and 3 and have also perused the record.
7. The complainant purchased the mobile handset alongwith memory card on 14.09.2015 from the OP No.1 and paid Rs.7520/- (Annexure C-1). The grievance of the complainant is that the OP No.1 has charged Rs.1521/- in excess than the MRP i.e. Rs.5999/-. The mobile handset was got financed from Op No.3 as per detail of the loan application (Annexure R-3/4). The loan detail is as under:-

(a)        Cost of mobile phone +                      7520.00 Rs.

cost of memory card (6,920+600)

(b)        Down payment                                   1,401.00 Rs.

(c)        Loan Amount (A-B)                           6,119.00 Rs.

(d)       Processing Fee                                       299.00 Rs.

(e)        Pay Now (B+D)                                  1,700.00 Rs.

(f)        Flat Interest Rate                                   0.00 % p.a.

(g)        Interest Amount                                         0.00 Rs.

(h)        EMI (Equated Monthly Installment)    1,020.00 Rs.

(i)         Number of EMI’s                                             6

From the above, it is clear that the complainant made the down payment of Rs.1401/- to the Op No.1 and loan amount was sanctioned by OP No.3 for Rs.6119/-. The complainant has also paid processing fees of Rs.299/- to Op No.3. The monthly installment of loan amount was fixed Rs.1020/- and the loan was to be paid in 6 equal installments. The complainant made full payment to the Op No.3 (Annexure R-3/8). In their reply, the Op No.1 has stated that they charged Rs.5999/- as price of handset and Rs.1020/- as cost of memory card and Rs.600/- as power bank as insurance cost and he charged Rs.7520/- from the complainant. The Op No.1 has failed to produce any evidence in support of his contention that he charged Rs.5900/- as cost of the handset whereas as per Annexure C-2, the maximum retail price of the handset is Rs.5999/-. The Op No.1 has also failed to produce any document to show that the OP No.1 has charged Rs.600/- for power bank as insurance cost and he has not produced any insurance cover note/policy in support of their contention. The Op No.1 has also not mentioned the price of memory card separately. Therefore, it is clear that the Op No.1 has charged Rs.1521/- in excess from the complainant that amounts to deficiency in service. In their reply, the Op No.2 has stated that the Op No.1 is not an authorized dealer of OP No.2 and OP No.2 is not responsible for any illegal act of OP No.1. Since the OP No.1 did not appear after filing of written statement and he has not rebutted the abovesaid contention of the Op No.2. As stated above, the Op No.1 is not the authorized dealer of Op No.2 or the service center. Hence, he was not authorized to repair the handset and charge Rs.450/- whereas the handset was within warranty. The Op No.2 is a manufacturer and if there is any problem in the handset, it is liable to repair the handset but the complainant did not approach any service center to repair the handset. So, there is no liability occurred against the Op No.2 and the complaint qua Op No.2 is dismissed.

8. The Op No.3 has financed the price of the mobile handset on the terms and conditions agreed upon by the complainant and charged accordingly. Hence, there is no deficiency in service on the part of the Op No.3. In para 3 of their reply on merit, the Op No.3 has mentioned that “complainant had purchased the said mobile handset alongwith memory card amounting to Rs.1020/- from the Op No.1. It is absolutely wrong to say that the said mobile handset was costing Rs.7520/- in fact this price also include a cost of memory card of Rs.1020/- which was purchased by the complainant alongwith the said mobile handset. Therefore, the mobile handset was costing to Rs.6500/- and memory card was costing to Rs.1020/- total amounting to Rs.7520/- and accordingly a bill of Rs.7520/- was given by the Op No.1”. From the above, it is clear that the OP No.1 has charged Rs.1521/- in excess from the complainant and the complaint qua Op No.3 is also dismissed.
9. In view of the above, it is clear that the Op No.1 has charged Rs.1521/- in excess from the complainant and the present complaint is liable to be allowed. Hence, the present complaint is allowed accordingly and the Op No.1 is directed as under:-
   1. To pay Rs.1521/- to the complainant as charged in excess in price of the mobile handset.
   2. To pay Rs.450/- to the complainant which were charged for the repair of handset whereas it was within warranty.
   3. To pay Rs.2000/- as compensation for mental agony, harassment and cost of litigation.

 

Let the order be complied with within 30 days of the receipt of the certified copy of the order failing which the Op No.1 shall pay the amount at serial No. i and ii alongwith interest @ 9% per annum from the date of this order. A copy of this order be sent to the parties free of costs. File be consigned to the record room after due compliance.

 

Announced

04.08.2016    S.P.ATTRI          ANITA KAPOOR      DHARAM PAL

                        MEMBER           MEMBER                            PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

                       

                                                     DHARAM PAL 

                                                     PRESIDENT