Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 123.
Instituted on : 16.03.2015.
Decided on : 31.07.2015.
Mr. Deepak Vashistha s/o Sh. Jai Bhagwan Vashistha R/o 156f/14,Chunni Pura, Rohtak.
………..Complainant.
Vs.
- Faverdeal through its authorized manager, B-36, Hardev Nagar, Gali No.1, Top Floor, Delhi, India.
- Ebay through its authorized signatory, Ashoka, Barakhamba Rd, Delhi-110001.
- Sai Security System(Sony Care Centre), near Malabar Guest House, Green road, Rothak 124001 through its authorized signatory.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
Present: Complainant in person.
Oppsoite party no.2 given up.
Opposite party no.1 & 3 exparte.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he had ordered for the mobile phone of SONY Xperia L black item no.161417430300 with the opposite party at the rate of Rs.10450/- including shipping charges(Rs.500/-). The above said order was received by 15.09.2014. But the opposite party has sent an out of country model i.e. Sealed Sony Xperia L Smart Phone-Black colour C2105(161417430300). It is averred that the act of opposite party is illegal & unfair trade practice as the mobile phone has faulty mother board & got completely dead 12th December 2014. It is averred that the complainant also contacted to Sony Care Centre i.e. opposite party no.3 for the repair of mobile but they refused for the same stating that the phone is out of country model. It is averred that the complainant discussed the matter with the opposite party telephonically to Mr. Sandeep and Mr. Om Parkash on 31st December 2014 for the very first time but of no use. It is averred that the complainant sent his mobile to the opposite parties two times but the phone was not repaired well. It is averred that the opposite party assured to sent a replaced cellular phone on 4th of March, 2015 but the opposite party sent the older mobile on 21.02.2015 without repairing and did not send ear plugs and shipping charges. The mobile sent by the opposite party was defective and it get switched off anywhere, anytime. As such it is prayed that the opposite parties may kindly be directed to replace the phone, model must be C2104 and opposite parties may kindly be directed to pay compensation of Rs.32000/- on account of mental agony & harassment and Rs.10000/- as litigation expenses to the complainant and any other relief to which the complainant is found entitled may also granted in his favour.
2. Notice of the present complaint was sent to the opposite parties. But opposite party no.3 did not appear despite service and as such was proceeded against exparte vide order dated 23.04.2015 of this Forum. Opposite party no.2 was given up by the complainant being unnecessary party vide order dated 08.06.2015 of this Forum. Opposite party no.1 was also proceeded against exparte vide order dated 08.06.2015 of this Forum. However opposite party no.1 sent its reply through speed post on the ground that the invoice dated 13.09.2015 supplier ref(Paise id no-37345648485) is in the name of some other consumer i.e. Bindu Devi, Rohtak. The mobile was sold to Bindu devi and not to the complainant. Contention of the complainant that he purchased the said mobile is contrary is record. It is averred that the mobile set which the complainant is referring in the complaint is not the one sold against the paise id that he is referring in the complaint. It is averred that the complainant ought to have made Sony Care Centre as a party to this case. It is averred that the Bindu Devi had talked to the opposite party no.1 and sent the mobile. Mobile was found tampered and mishandled. However, as a good gesture, the same was repaired and returned. The complainant ought not have used the mobile for four month in such case and ought to have returned the same to the seller/OP but the complainant did not do so. It is averred that there is no inherent manufacturing defect as the mobile set was received on 15.09.2015 and there was no complaint till 12.12.2014 as per the complaint. The mobile was in working condition. The mobile was handled improperly. Still opposite party no.1 set right the defect and returned back to the complainant Bindu Devi. It is averred that for manufacturing defect, only manufacturer can be held liable. Hence the present case is bad for misjoinder and liable to be dismissed. It is averred that after using the mobile set trouble free for four month the monetary terms, the value of mobile set remains only Rs.6966/-. It is prayed that the complaint may kindly be dismissed with costs.
3. Complainant led evidence in support of his case.
4. Complainant in his evidence tendered his affidavit Ex.CW1/A, documents Ex.C1 to Ex.C3 and has closed his evidence.
5. We have heard the complainant and have gone through material aspects of the case very carefully.
6. There is no rebuttal to the evidence that the complainant had purchased the mobile set for a sum of Rs.10450/- on 11.09.2014 from the opposite party no.1 as is proved from bill Ex.C1. It is also not disputed that as per courier receipt Ex.C2 the complainant sent the alleged handset for repair to opposite party no.1. It is also observed that as per email dated 17.11.2014 at page no.3 of document Ex.C3 ebay@ebay sent the message to Deepak Vashistha(khanchibindu95dpk) and had confirmed the delivery of item “Brand New & sealed Sony Xperia L Smart phone-Black Color” from the seller fundeal-2013. This message shows that the alleged mobile set was delivered to Deepak vashistha and the message was sent at the email-id khanchibindu95dpk and as per bill Ex.C1 also, the name of buyer is Deepak Vashistha and the buyer Deepak Vashisth has booked the mobile set through the email-id khanchibindu95dpk. Hence the plea taken by the opposite party that the buyer is Bindu Devi is not proved. As per page no.10 of this document Ex.C3 it is submitted that the opposite party had delivered the model c2105 which is out of country model and was having fault in it which was sent to the opposite parties but the problem was not solved. As per the conversation made between the parties at page no.10 to page no.23 of Ex.C3, the complainant had alleged that the opposite parties have sold the out of country model and the same was faulty but the opposite parties have nowhere mentioned that they have not sold the alleged out of country model and has submitted that they have replaced 2 times and can’t help the complainant now.
7. After going through the file and hearing the parties it is observed that from the documents placed on record by the complainant it is proved that the opposite parties have sold the out of country model to the complainant which was faulty and the defect could not be removed despite repaired twice which shows the unfair trade practice on the part of opposite parties. On the other hand it is also on record that the opposite parties have not filed any evidence to rebut the version taken by the complainant in his complaint and were proceeded against exparte and as such it is presumed that opposite parties have nothing to say in the matter. Therefore all the versions put forth by the complainant regarding selling out of country model and defects in the alleged mobile set stands proved. In this regard reliance has been placed upon the law cited in 1(2007) CPJ 120 titled Head Marketing and Communication Vs. Ankush Kapoor & Ors. whereby Hon’ble U.T. Commission, Chandigarh has held that: “Handset giving problems from day one/Defects could not be rectified inspite of being repaired twice-Undoubtedly, it suffered from inherent defects- Deficiency in service proved- Forum rightly ordered refund of cost of handset with interest”, as per 2008(1)CPC 52 titled Sony Ericsson India Ltd. Vs. Ashish Aggarwal, whereby Hon’ble National Commission has held that: “Mobile purchased from OP had problem in key pad-New hand set after replacement also found to be faulty-State Commission directed refund of the money while OP insisted to offer replacement by new hand set-Refund of amount is justified as deficiency in service is writ large-Order upheld” as per 2014(1)CLT588 titled Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others Hon’ble Delhi State Commission has held that: “In the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product-if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous”. In view of the aforesaid law, which are fully applicable on the facts & circumstances of the case, it is observed that the complainant is entitled for refund of price of mobile set.
8. In view of the aforesaid findings and discussions, it is directed that the opposite party no.1 shall refund the price of mobile set i.e. Rs.10450/-(Rupees ten thousand four hundred fifty only) along with interest @ 9% p.a. from the date of filing the present complaint till its actual realization and shall also pay a sum of Rs.1500/-(Rupees one thousand five hundred only) as litigation expenses to the complainant within one month from the date of decision. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs.
10. File be consigned to the record room after due compliance.
Announced in open court:
31.07.2015.
................................................
Joginder Kumar Jakhar, President
..........................................
Komal Khanna, Member.
