Punjab

Rupnagar

CC/14/136

Sunil Kumar - Complainant(s)

Versus

Hindustan Enterprises - Opp.Party(s)

Sh. Dheeraj Pasricha, adv

31 Mar 2015

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR.

 

                               Consumer Complaint No. : 136 of 05.11.2014

                               Date of decision                 : 31.03.2015

 

Sunil Kumar Son of Subash Chand Sharma, resident of House No. 159, Giani Zail Singh Nagar, Rupnagar, Tehsil & District Rupnagar.

                                                                                      ......Complainant

 

                                             Versus

 

1. Hindustan Enterprises,Main Bazar, Phool Chakker Chowk, Rupnagar,

    District Rupnagar, through its Prop.

2. M/s Ganesh Electricals, Patiala 37-C, Mansahia Colony, Near Pathak

    No.21, Railway Road, Patiala -147001, authorized service center of

    Micromax Mobile.

3. Customer Care Officer, Micromax Information Limited, 90-B, Sector

    18, Gurgaon, Haryana, State Pin-122015.

                                                                                   ....Opposite Parties

 

                                        Complaint under Section 12 of the                                                           Consumer Protection Act, 1986

 

QUORUM

                             MRS. NEENA SANDHU, PRESIDENT

                             SHRI V.K. KHANNA, MEMBER

                             SMT. SHAVINDER KAUR, MEMBER

 

ARGUED BY

Sh. Dheeraj Pasricha, Advocate, counsel for the complainant

Sh. Manpreet Singh, Advocate, counsel for Opposite Party No.1

Opposite Parties No. 2 & 3 ex-parte

 

 

ORDER

                                       MRS. NEENA SANDHU, PRESIDENT

                   Sh. Sunil Kumar has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ only) against the Opposite Parties (hereinafter referred to as the O.Ps.) praying for the following reliefs:-

i)       To pay Rs.7800/- as cost of the mobile set,

ii)      To pay Rs.20,000/- as compensation on account of unnecessary harassment caused to him,

iii)     To pay another sum of Rs.20,000/- as litigation expenses.

 

2.                In brief, the case of the complainant is that on 23.05.2014, he had purchased a mobile set make Micromax, Model- A-77, EMI No.911338251486652 vide bill No.736 from O.P. No.1 for a sum of Rs.7800/-. After its purchase, its touch screen stopped working and he approached the O.P. No.1 for removal of the said problem, who sent the same to the Service centre i.e. O.P. No.2 and told him to come after 15 days to collect the same. After its repair, the O.P. No.1 handed over the same to him after 45 days without any job card. During that period, he remained without mobile set. As after four days, it hanged during the call and he again gave it to O.P. No.1 for its repair, who sent it to O.P. No.2 for doing the needful. Again after its repair, the mobile set was handed over to him without any job card. It is further stated that the mobile set again started creating problem, therefore, he sent an email to O.P. No.3, complaining about the said problem, but the O.P. No. 3 did nothing.  On 06.08.2014, he again gave his mobile set to O.P. No.2 for repair, who after repair, returned the same to him in the evening on that date, along with job card. After some time, the said mobile set started giving some other problems and for rectification of the same, he handed over the same to O.P. No.2, who returned the same on 22.09.2014 along with job card of even date. However, on checking the mobile set handed over by the O.P. No.2, he found that although its EMI number is the same, but the model has been changed. The model of his mobile was A-77, whereas the model of the mobile set handed over to him by the O.P. No.2 this time, is A-177.  Thus, there is great deficiency in service on the part of the O.Ps and he remained without mobile set for more than six months. He visited the office of the O.P. company at Patiala by spending huge money and time for getting his mobile set, for which the O.Ps. are liable to pay him the compensation. Hence, this complaint.  

 

  3.               On being put to notice, the O.P. No.1 filed written statement, taking preliminary objections; that the complaint is not maintainable in the present Form; that the complainant has not come to this Forum with clean hands; that the complainant has concealed the true facts of the matter from this Hon’ble Forum and the that the complaint being without any merit is liable to be dismissed. On merits, the factum of purchase of the mobile set in question by the complainant from the said O.P. No.1 and its repair by it is admitted. It is stated that the O.P. No.1 had provided every necessary service to the complainant and his mobile set was got repaired from service centre i.e. O.P. No.2. The answering O.P. is not liable to pay any compensation to the complainant or to change the mobile set in question as per the warranty conditions. There is no deficiency in service on its part. The mobile set purchased by the complainant is more than 8-9 months old. If the complainant had visited the office of Patiala by spending huge money, the answering O.P. is not liable for the same. In the bill, issued to the complainant by O.P. No.1, it is clearly mentioned that the answering O.P. is not liable for any warranty. The warranty is provided by the company at its service centre. The said bill was duly signed by the complainant, after admitting the conditions mentioned therein to be correct. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, it being without any merit.

 

  4.               On being put to notice, none appeared on behalf O.Ps. No.2 & 3, accordingly, they were proceeded against ex-parte vide order dated 16.12.2014.

 

5.       On being called upon to do so, the learned counsel for the complainant tendered affidavit of the complainant, Ex. C1, photocopies of documents Ex. C2 to Ex.C4 and closed the evidence. On the other hand, the  learned counsel for the O.P. No.1 tendered affidavit of Sh. Ravinder Kumar Saini, Proprietor, Ex.O.P-1 and closed the evidence.

 

6.                We have heard the learned counsel for the complainant and the contesting O.P. No.1 and gone through the record of the file carefully.

 

7.                The learned counsel for the complainant submitted that the complainant had purchased a Micromax mobile set No. A-77, bearing EMI No.911338251486652 vide bill dated 23.5.2014 from O.P. No.1, which, immediately, after its purchase got defective, as its touch screen stopped working. Accordingly, he approached the O.P. No.1, who sent the same to the O.P. No. 2, i.e. the Care Centre, for doing the needful and told him to come after 15 days to collect the same. However, the O.P. No.1 returned the mobile set to him, after its repair, after 45 days, but no job card was issued for the same. After 4 days, it again got defective, as it hanged during the call. He again gave the said mobile set to O.P. No.1 for sending the same to O.P. No.2 for repair. Even this time also, no job card was given to him for the same. After its repair, the O.P. No.1 handed over the said mobile set to him, but it again started giving some problem and email to that effect was sent to O.P. No.3, but to no use. Thereafter, on 6.8.2014, he gave his mobile set to O.P. No.2, which is situated at Patiala, for its repair, who returned the same after its repair alongwith job card, in the evening itself, on the said date.  It again started giving some problem and he gave it to O.P. No.2 for repair, who returned the same to him on the same date alongwith job card dated 22.9.2014. On checking the same, it was found by him that the O.P. No.2 had handed over the mobile set having the model A-177 instead of  his mobile set having model A-77, although its EMI was the same. In this way, it is clear that the mobile set purchased by him suffered from defects from the very beginning, which could not be removed and moreover, the O.Ps. have played a fraud with him by changing the model of the said mobile set, thus, they are deficient in rendering service, and are liable, jointly & severally, to refund the cost of the mobile set purchased by him and also to pay compensation on account of unnecessary harassment alongwith litigation expenses.

 

8.                The learned counsel for the O.P. No.1 vehemently argued that whenever, the complainant had approached it, the O.P. No.1 had provided the requisite services immediately and it had sent the mobile set to the service centre i.e. O.P. No.2 for its repair. He further submitted that from the Job Card dated 22.9.2014 (Ex. C4) it is evident that the complainant himself approached the O.P. No. 2 for its repair and not through O.P. No.1. Even if there is any grievance of the complainant, then it does not relate to O.P. No.1 and it cannot be said to be deficient in any manner and the liability, if any, to repair the mobile set within the warranty period is that of O.P. No.2, because in the invoice dated 23.5.2014(Ex. C2), it is categorically mentioned in the Conditions mentioned at its foot note that the guarantee has to be provided by the Company at its service station and the seller i.e. O.P. No.1 is not responsible for the same and the customer is to go to the service centre himself. Consequently, the complaint against O.P. No.1, being without any merits, be dismissed with costs.

 

9.                Admittedly, on 23.5.2014, the complainant purchased the mobile set in question from O.P. No.1, who in lieu of that issued a bill/invoice Ex.C2. From the conditions printed on the foot note, of the said invoice (Ex.C2), it is clear that, the guarantee has been provided by the manufacturer and the seller is not responsible for the same. In case, any defect occurs in the mobile set then the customer for its rectification can go to the service centre himself. Even otherwise, as per the version of the complainant himself, whenever he took his mobile set to O.P. No.1 for its repair, it immediately sent the same to O.P. No.2 for doing the needful. Be that as it may, the complainant has failed to prove any deficiency in service on the part of the O.P. No.1. Thus, the complaint filed against O.P. No.1 is liable to be dismissed. So far as deficiency in service on the part of the O.Ps. No.2 & 3 is concerned, it is the case of the complainant that since the very day of its purchase the mobile set did not work properly and he had to take the same to the O.P. No.2 i.e. service centre repeatedly for its repair, but what to talk about to set it right, the O.P. No.2 had even delivered him another mobile having model A-177 fraudulently, instead of his mobile having model A-77. The O.P. No.2 i.e. the authorized service centre, works for O.P. No.3 i.e. the manufacturer, and the O.P. No.3 is responsible for the act & conduct of the O.P. No.2, therefore, the O.Ps. 2 & 3 both are deficient in rendering service and are liable to compensate the complainant. Since none had appeared on behalf of O.Ps. No. 2 & 3, they were proceeded against ex-parte. In this situation, the onus was on the complainant to prove his case by leading cogent & convincing evidence. It may be stated that he has placed on record, Ex. C2, which is Retail Invoice dated 23.5.2014, vide which he had purchased the mobile set in question. Ex. C3 is the copy of Job Sheet dated 6.8.2014 whereas Ex. C4 is the copy of Job Sheet dated 22.9.2014.  Except these documents no other document has been placed on record. The self- serving affidavit of complainant which is not supported by any document will not serve any purpose, Thus, on the basis of the above said documents tendered in evidence, it cannot be inferred that the O.P. No.2 had delivered a different mobile set having model A-177 instead of actual mobile set having model A-77 handed over by the complainant for its repair. To prove the said fact, it requires voluminous evidence including examination and cross-examination of witnesses. Since the proceedings before this Forum are summary in nature, therefore, the present case cannot be adjudicated by this Forum.  In the case of ‘Reliance Industries Ltd. Vs. United India Insurance Co. Ltd.’ 1(1998) CPJ 13, which was decided by the four Members Bench of the Hon’ble National Commission it was held that where the questions of fraud & cheating are involved in regard to the claim of the complainant which require thorough scrutiny including the examination of various documents & supporting oral evidence, the Consumer For a cannot adjudicate upon the matter. It was further held that the questions of fraud, cheating & conspiracy could be satisfactorily resolved by the civil court.

 

10.               In view of the above discussion, we dismiss the complaint against all the O.Ps., leaving the parties to bear their own costs. The complainant is, however, at liberty, to pursue his remedy before the appropriate civil court, if he so desires and may seek condonation of delay, as per Section 24 of the Limitation Act, 1963, for the time spent before this Forum.

 

11.     The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.

 

ANNOUNCED                                                                       (NEENA SANDHU)

Dated 31.03.2015                                                  PRESIDENT

 

 

(V.K. KHANNA)                    (SHAVINDER KAUR)

                    MEMBER                                MEMBER.