Delhi

East Delhi

CC/803/2012

YOGESH KUMAR - Complainant(s)

Versus

GAUTAM ELE. - Opp.Party(s)

11 Apr 2017

ORDER

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO.  803/12

 

Shri Yogesh Kumar Srivastav

R/o 861, Shakti Khand-4

Indrapuram, Ghaziabad, UP                                                           ….Complainant

 

Vs.

 

1. Gautam Electronic

3, Park End, Main Vikas Marg

Laxmi Nagar, Delhi – 110 092

 

2. Vaishnavi Service

Plot No. 45-46, Shop No. 6-7

Mohan Park, West Guru Angad Nagar

Laxmi Nagar, Delhi – 110 092                                                                     

 

3. Sony Ericssion Mobile Comm. Pvt. Ltd.

Sony Ericssion Developers World

Building No. 9A, 10^th Floor

DLF Cybercity, Sec.-25A

Gurgaon, Haryana – 122 062                                                        ….Opponents

 

Date of Institution: 31.10.2012

Judgment Reserved on: 11.04.2017

Judgment Passed on: 11.04.2017

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari  (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By : Sh. Sukhdev Singh (President)

 

 

JUDGEMENT

            This complaint has been filed by Shri Yogesh Kumar Srivastav against Gautam Electronics (OP-1), Vaishnavi Services (OP-2) and Sony Ericssion Mobile Comm. Pvt. Ltd. (OP-3) praying for directions to OP to refund the cost of mobile, Rs. 50,000/- as compensation on account of harassment, mental agony & pain and Rs. 15,000/- cost of litigation. 

2.         The facts in brief are that the complainant purchased a Sony Erission mobile from the authorized dealer of OP-1 on 08.01.2010 for a sum of Rs. 13,200/- bearing IMEI no. 356817030860859, vide invoice no. 1189/20645.  In December, 2010 the phone of the complainant stopped.  The complainant visited Vaishnavi Services (OP-2) on 14.12.2010 and deposited his mobile vide work order no. SE310VSL11179.  He visited OP-2 again on 17.12.2010 but did not get any satisfactory reply.  Legal notice to OP was neither replied. 

3.         In the reply, Gautam Electronics (OP-1), Vaishnavi Services (OP-2) and Sony Ericssion Mobile Comm. Pvt. Ltd. (OP-3) have taken various pleas such as the complaint was not maintainable as it was barred by limitation; complainant deposited broken and damaged handset with OP; the job sheet clearly mentioned that there was liquid ingress into the phone and the phone was damaged and as per terms and conditions, warranty became void on liquid ingression; they never received any notice before the present notice in the present case.  They have further stated that this forum was not empowered to recall their own orders.  The complainant has to approach the Hon’ble State Commission for this purpose.    Other facts have also been denied. 

4.         Rejoinder to the WS of OP has been filed by the complainant  wherein the complainant denied all the contents of the WS and reiterated the contents of his complaint. 

5.         In support of its complaint, the complainant has examined himself on affidavit.  He has narrated the facts which have been stated in the complaint. 

            In defence, OP-1, 2 and 3 have examined Shri Priyank Chauhan, Officer of OP, who has deposed on affidavit.  He has also narrated the facts, which have been stated in the WS.  He has also got exhibited copy of Power of Attorney (Ex.OPW1/1). 

6.         We have heard Ld. Counsels for parties and have perused the material placed on record.  It has been argued on behalf of OPs that the first complaint was dismissed, which was not got restored by the complainant.  Further, the complaint was barred by limitation. 

On the other hand, Ld. Counsel for the complainant has argued that since the complaint was not decided on merit, subsequent filing the complaint does not take away the right of the complainant to file the present complaint with regard to limitation.  He has stated that the first complaint was filed in December 2010, which was got dismissed due to non-appearance on 23.07.2012.  Subsequent complaint was filed on 19.09.2012 immediately after dismissal of the first complaint.  Thus, he has stated that the same was not barred.

            Firstly, the plea with regard to dismissal of the complaint and filing of the subsequent complaint is taken up.  It is admitted fact that complainant filed the complaint in December 2010, which was dismissed in default on 23.07.2012 and he subsequently filed the present complaint on 19.09.2012.  The fact that earlier complaint was not decided on merit, subsequent filing of the complaint does not bar the complaint to file the present complaint.  Therefore, this plea of Ld. Counsel for OPs stands rejected.

 

            Coming to the second argument with regard to limitation, the earlier complaint is said to have been filed in December 2010, which was dismissed on 23.07.2012 and the present complaint was filed on 19.09.2012 immediately after dismissal of the first complaint.  The fact that subsequent complaint was filed immediately after about two months, the cause of action still continues.  When the cause of action continues, the question of limitation does not arise as it was stated in the complaint that the complainant visited the service centre of OPs on 17.12.2010 and he filed the earlier complaint in December 2010 and the present complaint immediately after dismissal of the earlier complaint on 23.07.2012.  The filing of the present complaint on 19.09.2012 was not barred on the ground of limitation.  Therefore, this plea of OPs also does not hold good and the same stands rejected. 

            From the testimony of the complainant and the documents placed on record, it is evident that the complainant has purchased a mobile on 08.01.2010 by paying an amount of Rs. 13,200/-.  Further, the document placed on record show the problem as “Display Problem”.  This document is of 14.12.2010.  Thus, this document also show the unit damage by liquid/corroded.  The set is said to have been returned unrepaired.  In the evidence filed on behalf of OPs, they have stated that in cases of liquid ingress in a mobile phone, the phone was repaired always on chargeable basis.  They have given the estimate, which was rejected by the complainant and the phone was returned unrepaired.  However, they have not placed anything on record with regard to estimate given and the terms and conditions for repairing the phone in such conditions.  In the absence of that, the plea taken by OPs cannot be accepted.  Thus, the fact remains that the mobile was returned unrepaired, though damage by liquid. 

The fact that OPs have not repaired the mobile and have not placed on record the estimate and the terms and conditions, this amounts to deficiency on the part of OPs.  That being so, the complainant is entitled for refund of cost of mobile.  Therefore, it is ordered that the complainant be paid an amount of Rs. 13,200/- being the cost of mobile alongwith compensation and cost of litigation amounting to Rs. 5,000/-.  The complainant is to return the handset on payment of the awarded amount.  The awarded amount be paid within a period of 30 days, failing which it will carry 9% interest from the date of order till its realisation. 

            Copy of the order be supplied to the parties as per rules.

File be consigned to Record Room.

 

 

(DR. P.N. TIWARI)                                                 (HARPREET KAUR CHARYA)

       Member                                                                    Member              

     

 

  

   (SUKHDEV SINGH)

             President