Date of filing:-26/05/2017.
Date of Order:-26/10/2017.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM(COURT)
B A R G A R H.
Consumer Complaint No. 24 of 2017.
Nepal Dharua, son of Duaru Dharua, aged about 34(thirty four) years, resident of Tangarpada, Ward No.1(one), Bargarh, Po/Ps/Dist. Bargarh. ..... ..... ..... Complainant.
-: V e r s u s :-
Dinesh Agarwal, Proprietor of M/s ON Mobile, near Government Bus Stand, Bargarh, Po/ps/Dist. Bargarh. ..... .... Opposite Party.
Counsel for the Parties.
For the Complainant:- Sri S.Shukla, Advocate with other Advocates.
For the Opposite Party :- Ex-parte
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r(w).
Dt.26/10/2017 -: J U D G E M E N T :-
Presented by Ajanta Subhadarsinee, Member(w):-
The Complainant has filed this case U/s 12 of Consumer Protection Act-1986 against the Opposite Party alleging deficiency in service and adopting unfair trade practice.
The brief fact of the case is that the Opposite Party is the proprietor of M/s On Mobile, the authorised Dealer and seller of various mobile companies. On Dt.28/09/2015, the Complainant had purchased one H.T.C. Eqs Dual Sim Mobile set, bearing Bill No. 8032, for a sum of Rs.21,200/-(Rupees twenty one thousand two hundred)only from the Opposite Party with due receipt along with a warranty card for his personal use. According to the Complainant within one year of purchase, defect occurred in the said mobile, i.e. within the warranty period of free replacement. The same handset stopped functioning and became complete dead in the month of April, 2016. Then the Complainant approached the Opposite Party along with the said defective mobile set on Dt.25/04/2016 for its replacement. The Opposite Party received the defective mobile set from the Complainant and asked for the original warranty card, owner manual and original invoice bill, issued at the time of purchase of the mobile set. Accordingly the Complainant has duly handed over all the original documents to the Opposite Party in the presence of one Ranjan Sethy. Thereafter the Complainant approached several times to the Opposite Party to replace the defective mobile set with a new one. But the Opposite Party avoided the same on different pretexts. Thereafter the Complainant issued a registered legal notice to the Opposite Party on Dt.28/04/2017 demanding replacement of the defective mobile set with a new one. The Opposite Party inspite of receiving the notice did not response. Hence the case has been filed by the Complainant.
Further the Complainant has contended that the above act of the Opposite Party amounts to deficiency in service. The Opposite Party has also violated the terms and conditions of the warranty, issued by the Company. As a result, the Complainant has suffered from mental agony and physical harassment without getting any benefit or utility, by the illegal act of the Opposite Party. Alleging deficiency in service on the part of Opposite Party, the Complainant prayed for Rs.10,000/-(Rupees ten thousand)only towards mental agony and harassment and Rs.5,000/-(Rupees five thousand)only for litigation expenses along with interest which the Opposite Party is liable to pay to him besides replacement of the mobile set or its value i.e. Rs.21,200/-(Rupees twenty one thousand two hundred)only.
The Complainant has relied upon the following documents to establish his case.
Xerox copy of money receipt vide No. 8032 Dt. 28/09/2015 issued in favour of the Complainant.
Xerox copy of office copy of the legal notice Dt. 28/04/2017 issued to the opposite party.
Xerox copy of postal receipt no. RO 718564602 IN Dt. 28/04/2017.
Original copy of delivery certificate issued by A.P.M.S.O. (S.B) L.S Bargarh H.O. Dt. 23/05/2017 which delivered on Dt.01/05/2017 as per the certificate.
Xerox copy of one judgment order passed by Honble Judge P.K. Mahanty, based on Civil Procedure Code,1908 , Order - 8, Rule-5.
The Forum admitted the Complaint petition, by perusing the petition and documents in its support and hearing the argument of the advocate for the Complainant and sent notice to the Opposite Party for his appearance and version SR back after duly served but the Opposite Party did not appear nor filed his version. As such the Opposite Party was set as Ex-parte on Dt.20/09/2017 and date fixed for ex-parte hearing. Heard the matter from the advocate for the Complainant and posted for ex-parte order.
After a careful scrutiny of the case, it is found that the Complainant has purchased one mobile phone from the Opposite Party. The Opposite Party has issued the money receipt in that regard vide No. 8032 Dt. 28/09/2015. The Complainant in his Complaint petition alleged that during the warranty period of one year the mobile set purchased by him shows defect and became completely dead in the month of April 2016 .Then he approached the Opposite Party to replace the same, but inspite of receiving the mobile set and other original documents from the complainant, he did not provide necessary service to him. The Opposite Party to counter the complaint case neither appeared nor submitted any documentary evidence to disprove the case. Again at the time of hearing of this case the advocate for the Complainant argued that in Civil Procedure Code 1908, Order-8, ule-5 there is principles of non traverse ,pleading made in the plaint specifically - Neither affirmed nor denied in written statement, pleading is deemed to have been admitted. In the present case also the facts stated in the plaint specifically neither affirmed nor denied by the Opposite Party . Held pleading is deemed to have been admitted.
Hence it can be concluded that the Complainant is genuine consumer of the Opposite Party under Section- 12 of the Consumer Protection Act 1986, And by not providing proper service to the Complainant, the Opposite Party is guilty of deficiency in providing consumer service to the Complainant for which he is liable hereunder.
In the result, the Forum allowed the case of the Complainant and ordered as follows :-
O R D E R
The Forum hereby directed the Opposite Party to replace the old mobile phone with anew mobile set of the same make and model to the Complainant or refund the cost of the mobile set i.e Rs.21,200/-(Rupees twenty one thousand two hundred)only and pay @6%(six percent) interest per annum on the purchase amount from the date of filing this case till the date of this order along with Rs.5,000/-(Rupees five thousand)only towards compensation for harassment, mental agony and litigation expenses to the Complainant within one month from the date of the order failing which total awarded amount shall carry @10%(ten percent) interest per annum till the actual date of realization of the amount.
The Complaint is allowed and disposed off accordingly.
Typed to my dictation
and corrected by me.
(Ajanta Subhadarsinee)
Member (w)
I agree, I agree,
(Sri Krishna Prasad Mishra) (Sri Pradeep Kumar Dash)
P r e s i d e n t. M e m b e r(m).
