STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Veenu, H.No.2344, Sector 37-C, Chandigarh.

……Appellant

V e r s u s

Durga Communications, SCO No.23, 1st Floor, Sector 18-D, Chandigarh.

              ....Respondent

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    MR. JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

Argued by:  Appellant in person

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.               This appeal is directed against the order dated 07.03.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it partly accepted the complaint, and directed the Opposite Party, as under:-

“As a result of the above discussion, the complaint is partly allowed and the OP is directed to handed over the duly repaired and functional mobile set to the complainant along with compensation and litigation costs, which are assessed at Rs.1000/-. This order be complied with by OP within one month from the date of receipt of certified copy of the order”

2.               The facts,   in   brief,   are   that the complainant purchased Samsung Mobile, bearing No. IMEI No.352581048086550,  vide bill No.4952 dated 25.9.2010, for a sum of Rs.2,050/-. According to the complainant, the said mobile set became defective. The complainant contacted the Opposite Party, within the guarantee period, with the request to rectify the defect, but neither it (Opposite Party), repaired the mobile set, nor changed the battery of the same. It was stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.               The Opposite Party, in its written version, admitted that the mobile set, aforesaid, vide bill No.4952 dated 25.9.2010, was purchased by the complainant, for a sum of Rs.2,050/-. It was stated that the defect in the mobile set, in question, was not covered under the terms and conditions of the warranty, as it suffered from “liquid damage”, due to which, its PBA had become dead. It was further stated that, however, the Opposite Party, attended the complaints of the complainant on 22.10.2011 and 4.11.2011. It was further stated that, only the manufacturer could replace the alleged defective mobile set, but it was not impleaded as a party, by the complainant, to the complaint, and, as such, the complaint was liable to be dismissed. It was further stated, that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.               The Parties led evidence, in support of their case.

5.               After hearing the complainant in person, Counsel for the Opposite Party, and, on going through the evidence, and record of the case, the District Forum, came to the conclusion that the defect, in the mobile set, was not covered under the terms and conditions of the warranty. It was further concluded by the District Forum, that the Proprietor of the Opposite Party, on 29.12.2011, stated that the mobile set had been repaired and was functioning, but the complainant refused to take delivery of the same, on the ground, that he should be paid the price of the mobile set, alongwith compensation and litigation costs. It was further concluded by the District Forum, that since the manufacturer had not been impleaded, as  a party, to the complaint, the replacement of the mobile set could not be ordered and only the repair thereof, could be directed to be effected. It was further held by the District Forum, that the complainant was entitled to compensation for harassment.

6.               Ultimately, the complaint was partly accepted by the District Forum, in the manner, referred to, in the opening para of the instant order. 

7.               Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant, for refund of the price of the mobile set and enhancement of compensation. .

8.               We have heard the appellant, in person, and, have gone through the evidence and record of the case, carefully. 

9.               The appellant, submitted that the mobile set, suffered from manufacturing defect, and, as such, he was not ready to accept the same, after the repairs, having been effected therein, by the Opposite Party.  He further submitted that even after repairs, the mobile set was not functional. He further submitted that he was entitled to the refund of price of the mobile set, and enhancement of compensation, as a lot of mental agony and physical harassment was caused to him, at the hands of the Opposite Party. He, however, admitted that the manufacturer was not impleaded by him, as a party to the complaint. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.

10.            After giving our thoughtful consideration, to the contentions, advanced by the appellant, in person, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. Undisputedly, the mobile set, aforesaid, was purchased by the complainant, for a sum of Rs.2,050/- on 25.09.2010, from the Opposite Party. When the complaint was made, with regard to the defect therein, the same was duly attended to, by the Proprietor of the Opposite Party. Since, the mobile set suffered from liquid damage, such defect did not fall within the terms and conditions of warranty. Under these circumstances, the Opposite Party, from which, the mobile set was purchased, could not be held liable for manufacturing defect(s), if any, in the said mobile set. In the absence of impleadment of the manufacturer, as a party to the complaint, the Opposite Party i.e. the dealer, could not be directed to replace the mobile set or make payment of the price thereof.  It is evident,  from the order sheet dated 29.12.2011, recorded by the District Forum, that Sh. Rahul Gehlot, Proprietor of the Opposite Party, who was present, before it (District Forum), on that day, stated that the mobile set had been repaired and was functional, but the complainant,  refused to accept the same, on the ground, that he should be paid the price of the same i.e. Rs.2,050/-, alongwith compensation and litigation costs. The order sheet dated 29.12.2011, referred to above, shows the bonafides of the Opposite Party. The blame lay, on the shoulders of the complainant, as he refused to accept the mobile set, after the same was repaired, and made functional, by the Opposite Party. In case, there was any manufacturing defect, in the mobile set, the complainant could implead the manufacturer, as a party, with a view to claim, either the replacement of the same, or payment of price of the same,  but he did not do so. The relief, which could only be granted against the manufacturer, but it having not been impleaded as a party, to the complaint, could not be granted against the dealer i.e. the Opposite Party. The District Forum was, thus, right in holding, that the mobile set was repaired and made functional on 29.12.2011, after repairs, whereas, the complaint was filed by the complainant on 07.12.2011, and, as such, mental agony and physical harassment was caused to the complainant, to some extent, at the hands of the Opposite Party, as he was compelled to file a complaint. The District Forum was, thus, right in granting Rs.1000/-, as compensation and costs. Keeping in view the totality of the facts and circumstances of the case, the injury suffered by the complainant, and cost of the mobile set, the compensation awarded by the District Forum, cannot be said to be meagre or inadequate. It can be said to be fair and reasonable. The order of the District Forum, being legal and valid, is liable to be upheld.

11.            No other point, was urged, by the appellant.

12.            The order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

13.            For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.

14.            Certified Copies of this order be sent to the parties, free of charge.

15.            The file be consigned to Record Room, after completion

Pronounced.

May 01, 2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg