Date of filing: 14.11.2017 Date of disposal: 13.08.2018
Complainant: Pancharam Som, S/o. Late Biswanath Som, resident of Raydanga, Ujjaini, Durgapur-1, PS: Cokeover, Durgapur, Dist: Paschim Bardhaman, PIN – 713 201.
Opposite Party: 1. The Director, Micromax Informatics Ltd., having its Office at 21/14A, Phase-II, Naraina Industrial Area, Delhi – 110 028.
2. Micromax Service Centre, represented by its Manager, having its office at 3/36, Max Mullar Path, Bidisha Bus Stand, Durgapur-16, District: Burdwan, PIN – 713 216.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party No. 1&2: Authorized Representative.
J U D G E M E N T
The present claim application filed by the complainant Pancharam Som against Ops to pay a sum of Rs. 8,000=00 along with interest @10% p.a. or to repair or replace the mobile phone for deficiency in service and unfair trade practice along with a sum of Rs. 50,000=00 for mental pain, agony and harassment and also to pay Rs. 20,000=00 as litigation cost.
The brief fact of the case is that the complainant purchased a mobile phone on 28.07.2016 amounting to Rs. 8,000=00 being Model No. is A 290 and IMEI No. 91137925495156 from the ICEBERG Mobile Store, Benachity, Durgapur, manufactured by OP-1, i.e. The Director, Micromax Informatics Ltd., having its office at 21/14A, Phase-II, Nariman Industrial Area, Delhi, Pin – 110028. THE said mobile store also issued a tax invoice bearing No. 76 and the mobile was under insurance coverage for one year.
The complainant further stated that after one month from the date of purchase the mobile phone started various problems such as it shut down automatically, key pad was not working properly. Then the complainant in the month of April, 2017 went to OP-2 i.e. the authorized service centre of OP-1 and submitted his phone before them to repair but the OP-2 returned the phone to the complainant after a long period by saying that they are unable to repair it as the phone is out of warranty. But according to complainant as the phone was under warranty coverage, he further requested the OP-2 to take proper steps for repair or replacement but OP-2 did not pay heed rather they asked the complainant to go to insurance company as there is insurance coverage, so the insurance company will give replacement of the mobile phone. Being so aggrieved the complainant knocked the door of C.A. Department, Burdwan. But did not get any relief. Further the complainant believes that the mobile phone is suffering from manufacturing defects that is why the OP-2 is unable to repair the same.
The complainant further claimed himself a bonafide consumer of the Ops and the Ops in one hand did not repair the mobile inspite of knowing that the mobile is under warranty coverage and on the other hand thy misguided the complainant. The acts of the Ops are deficiency in service and unfair trade practice and for this the complainant suffered huge mental pain, agony and harassment.
The cause of action arose on and from April, 2017 when OP-2, the service centre failed to repair the mobile phone
After filing the present claim application, the complainant sent proper notice to the Ops and the Ops received summon and appeared and contested in this case by filing their written version.
The OP-1 stated in this written version that the complainant has no cause of action to file the present complaint and also denied all the allegations by saying that all are false and frivolous and the present complaint ought to dismiss with exemplary cost and the complainant is guilty of “suggestionfalse” and “suppressional”. OP-1 stated that the OP is a company of international reputation and serves its customers to their complete satisfaction.
OP-1 further stated that as the service centre is a separate independent entity therefore any defect/deficiency caused by its service centre this OP-1 is not responsible for that. According to OP-1 in this case the complainant failed to produce any documentary proof from where it could be establish that this set is a manufacturing defective set because manufacturing defect cannot be determined without proper analysis.OP-1 also said that according to warranty terms and condition this OP cannot be held responsible for any damage caused due to complainant’s own fault.
It is also submitted that this set is mishandled by the complainant and OP-1 is not responsible for that. OP-1 through its service center also informed the complainant that the damage is not covered under the warranty accordingly the complainant has to bear the cost of repair but the complainant refused to pay the legible repairing cost and filed the present complaint.
Furthermore, OP-1 also stated that as a good-will gesture this OP-1 is still ready and willing to repair or replace the mobile handset if there is any kind of negligence occurred on behalf of answering OP. Accordingly prayed before the Court to dismiss the original claim application.
OP-2 also contested in this present claim application by submitting their written version which is related with their affidavit. According to them when the complainant visited Micromax Care then they found same physical damage inside of this hand set and according to the terms and condition any physical damage or tamper not covered under warranty.
OP-2 further stated that at the time of purchasing the said mobile retailer committed to customer for insurance support. Therefore, it is not their part and any Micromax Care is not authorized for insurance support.
On considering the claim application along with written version filed by the OP-1&2, the following issues settled by the present Forum.
- Whether this claim application at all maintainable in its present form?
- Whether the complainant is entitled to get any award as prayed for?
Issue No. 1:-
The complainant filed the present application against the OP-s on the allegation that being consumer he suffers a lot due to unfair trade practice and deficiency in service by the Ops as they did not want to repair or replace the mobile phone which he purchased and to prove the same the complainant is able to produce the document (Xerox copy of receipt) which shows that he purchased the mobile hand set from ICEBERG Store amounting Rs. 8,000=00 against the invoice dated 28.07.2016. The allegation of the complainant is that the said hand set (mobile set) creates various problems within warranty period and for that complainant compelled to file present application against the Ops.
Besides that it also appears that complainant used to resides at Roydanga, Ujjain, Durgapur -1 under Cokeoven Police Station, i.e., within the jurisdiction of the present forum and the office of OP-2 is situated at 3/36, Maxmullar Path, Bidisha Bus Stand, Durgapur within district Burdwan, i.e., also within the territorial jurisdiction of this present Forum. So under such circumstances, it is clear that complainant is able to prove that the present application is maintainable according to law.
Issue No. 2:-
Now the question arises whether the complainant is at all entitled to get any award as prayed for and to consider this issue it appears that the complainant purchased a Micromax mobile on 28.07.2016 from ICEBERG Store from consideration amount of Rs. 8,000=00 being Model No. A 290, IMEI No. 91137925495156 and the retailer also issud a reeipt regarding the said mobile. After one month when it started problem then the complainant visited to OP-2, i.e., the service centre as it was under warranty coverage and OP-2 kept the mobile to them for repairing and after several days it returned the mobile to the complainant because according to them at present the mobile is not under warranty coverage. At the same time OP-2 informed the complainant that as per their terms and condition as it is not under warranty coverage so complainant have to bear the repairing cost and OPO-1 also informed the complainant that it is not their liability to repair the said mobile accor5ding to their terms and condition, and OP-1 to prove his case it is said that they have already produced the documents of terms and conditions with their written version.
Accordingly when we peruse the record carefully we noticed that the complainant though claimed that the said mobile which creates several problems after one month of purchasing i.e. within warranty period failed to produce any warranty card or documents to prove the same and ld. Lawyer for the complainant submits before the court at the time of argument that Ops never issued any warranty card in favour of him and at the same time it also appears that the Ops informed the p[resent Forum by written version that they have produced the document i.e. Annex-R1 which shows regarding the copy of warranty terms and condition but in fact no such documents actually filed by the Ops and it further appears that to prove that the mobile phone has been damaged within warranty period lies upon the Ops as Ops informed through their written version that the documents i.e. R1 shows the terms and condition of the warranty, so when several problems arises to the mobile handset then the complainant has filed the present case and it is also clear from the written version of OP-2 that the complainant went to Naira Mobile Care, authorized service centre of Micromax Informatics Limited to get relief but did not get any relief as during the period of verification it was noticed that same physical damage inside of this handset and as per warranty policy any physical damage or tampered not covered under warranty.
So it is the duty of OP-2 to inform the same to the complainant then and there by showing warranty card and also to inform the complainant the actual problem for which complainant suffers after purchasing the mobile phone.
So from the conduct of OP-2 it proves that the handset damaged within warranty period but OP-2 at the same time failed to produce the said warranty card before the forum for ascertain about the actual terms and condition i.e. whether physical damage inside the handset or any tampered not covered under warranty, at the same time OP-2 also not mention regarding the type of physical damage inside the handset which found at the time of verification. Further OP-2 informed through written version that the same incident already communicated to the customer but not produced any documents to show that the same was communicated to customer and also never stated about the procedure i.e., how the matter communicated to the customer. It further appears from the written version of OP-1 that the complainant failed to produce any documentary proof or evidence to establish any alleged defect/manufacturing defect as the defect/manufacturing defect in the mobile handset cannot be determined without proper analysis and as per Section 13 (1) (c) & 13 (1) (g) of C.P. Act the said handset ought to be referred to appropriate testing laboratory on the expense of complainant, regarding this it is clear that complainant stated in Para 3 of the application under Section 12 of the C. P. Act that he strongly believes the mobile phone was suffering from manufacturing defect and for that the OP-2 unable to repair the same that means he is not sure that his handset mobile is suffering from manufacturing defect but from the conduct of OP-2 where he went to get relief compelled him to believe and for that he stated the same incidence in Para 3 but after going through the complaint case along with written version as well as other documents it appears that admittedly complainant suffers after purchasing the mobile phone and as per complaint it was happened within warranty period and OP-2 also not denied the same but only denied as the problem for physical damage inside the handset and the said physical damage is not covered under warranty and at the same time OP-2 never clearly stated whether the said handset suffers from any physical damage or any manufacturing defect or not.
Under such circumstances, it is clear that complainant is able to prove the allegation against the Ops and is also entitled to get relief according to law.
Hence, it is
O r d e r e d
that the present Consumer Complaint being No. 223/2017 be and the same is allowed in part on contest against the Ops. with a direction to the complainant to deposit the mobile set being Model No. A 290, IMEI No. 91137925495156 to the OP-2 within 15 days from the date of this order and the OP-1 & 2 are directed to replace the mobile set with same Model No. A 290 within 30 days from the date of receipt of the said mobile set from the complainant or to pay Rs. 8,000=00 either jointly or severally as consideration money of the mobile set within 30 days from the date of receipt of the mobile set and the OP-1 & 2 are also directed to pay either jointly or severally compensation Rs. 2,000=00 and Rs. 1,000=00 as litigation cost within 45 days from the date of passing of this order, failing which the complainant is at liberty to put the entire award in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Nivedita Ghosh) DCDRF, Burdwan
President
DCDRF, Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
