Consumer Complaint No.207 of 2015

Date of filing: 27.9.2015                                                                          Date of disposal: 08.03.2017

Complainant:               Shymal Kanti Dasgupta, S/o. Late Sudhanshu Mohan Dasgupta, resident of D-326, Yuri Gagarin Path, Bidhannagar, Durgapur, District: Burdwan, PIN – 713 212.

-V E R S U S-

Opposite Party:    1.     Intex Technologies (India) Limited, represented through its Director, having its office at D-18/2, Okhla Ind. Area, Phase II, New Delhi, 110 020.

2.      Ghosh Electronics, represented through its Proprietor, having its office at Muchipara, Durgapur, PS: Bidhannagar, District: Burdwan, PIN 0 713 212.

3.      Soumili Travels, represented through its Manager, having its office at BC/33, Amedkar Sarani, City Centre, Eureka Forbes, Durgapur, District: Burdwan, PIN – 713 216.

Present:      Hon’ble President: Sri Asoke Kumar Mandal.

                        Hon’ble Member: Smt. Silpi Majumder.

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:                Ld. Advocate, Suvra Chakraborty.

Appeared for the Opposite Party No. 1:  None.

Appeared for the Opposite Party No. 2:  Ld. Advocate, Kripa Sankar Mondal.

Appeared for the Opposite Party No.3:  None.

J U D G E M E N T

This is a complaint u/S. 12 of the C.P. Act, 1986 alleging deficiency service and unfair trade practice as the Ops have sold out a defective mobile phone with manufacturing defect and did not replace the same with a new defect-free one.

            The complainant’s case is that he purchased one AQUA Y2 Mobile set from the OP-2 by paying the consideration amount of Rs. 4,100=00 and the OP-2 after receiving the said amount issued a money receipt bearing No. 341 on 07.8.2014, whose IMEI No. is 911383550735300. There was warranty coverage for one year or 15 months from the date of manufacturing. The complainant further submits that within few days of purchasing the complainant begun to suffer some problems while using the said mobile, mainly hearing problem. By getting some complaints and allegation the complainant rushed to the office of the OP-2 but the OP-2 did not take any step to repair the said mobile. The OP-2 suggested for going before the OP-3 who is the authorized service centre of the OP-1. After getting the address of the OP-3, the complainant went to the office of the OP-3 on 17.6.2015. The OP-3 after receiving the mobile set issued a job sheet bearing No. 506175476017T001. As per job sheet issued by the OP-3, the problem detected as “MIC NOT WORK”. The OP-3 after few weeks returned the said mobile set and assured that the set is fir for use. But very surprisingly the problems actually not removed. Thereafter the complainant more than three times visited before the OP-3 and on each and every time the men and the agent of the OP-3 took the mobile set from him and after keeping the same in their custody returned the same to your complainant. But they could not able to solve the problem in the said set. The complainant believes that the problem is an inherent problem and the Ops knowing fully well about the said defect delivered the mobile set to the complainant. The complainant craves leave to file a separate petition praying for sending the mobile set to the appropriate laboratory for ascertaining the actual defect at the time of hearing. The complainant further submits that he sent a mail to the OP-3 to their e-mail address on 01.7.2015 by requesting them to solve the problem. In reply the OP-3 vide their mail dated 01.7.2015 asked the complainant to get in touch with the service centre regarding their concerned. But they neither took any step regarding replace of the mobile set nor able to repair the same. These conducts of the Ops are deficiency in serviced and unfair trade practice and they are liable to compensate the complainant. The complainant prays for directing the Ops either replace the mobile phone of the complainant by a new one and/or pay a sum of Rs. 4,100=00 along with interest from the date of purchase and also to pay a sum of Rs. 5,000=00 for mental pain and agony and Rs. 5,000=00 as litigation cost.

            After admission of the complaint notices were duly served upon the Ops. From Order No. 3, dated 09.11.2015 it is found that the case will be heard ex parte against the Ops. As per order No. 07, dated 09.3.2016 OP-1 filed written version along with Board Resolution dated 05.8.2015 and the copy of the authorized letter dated 09.3.2016. On behalf o OP-1 two separate petitions have been filed praying to accept the written version and to vacate the ex parte hearing order passed against the OP-1. But as the authorized letter has not been properly framed, the same has not accepted. However to give an opportunity to the OP-1 to contest the case, both the prayers are allowed subject to payment of cost of Rs. 500/- payable to the Consumer Legal Aid Account, Burdwan. Accordingly the ex parte hearing order passed against the OP-1 is vacated. Thereafter, neither the cost as imposed was paid by the OP-1 nor filed the proper authorization letter. So order has been passed that the case will be heard ex parte against the OP-1.

Though notice was duly received by the OP-3, but the OP-3 neither appeared personally nor filed any written version to contest the case. So the complaint is heard ex parte against the OP-3.

It is evident from the records that vide order No. 04, dated 15.12.2015 the OP-2 appears and files vokalatnama along with two petitions paying to vacate the ex parte hearing order passed against it and to accept the written version filed this day. The prayer of the OP-2 has been allowed and the ex parte hearing order passed against the OP-2 is vacated and the written version filed by the Op-2 is accepted.

The case of the OP-2 is that the complainant has purchased the mobile in question in good condition at the time of purchasing the same and after choosing the mobile in question by the complainant, the complainant intended to purchase the same. This OP sold out the same with sealed condition, so it is crystal clear that there was no deficiency in service and unfair trade practice and as such if there is any dispute raised, the dispute may be held in between the complainant and the OP-1&3. The OP-2 further submits that if there is any problem while using the said mobile, mainly, hearing problem then it is the duty of the service provider to give service to the complainant as per the terms and condition stipulated by the manufacturing company. The OP-2 prays for dismissal of the case with cost against it.

Decision with reasons:-

            Heard the argument in full. The complainant states that from the very beginning of purchasing the mobile it does not function properly. So that he has brought the mobile before the OP-2 several times for repairing the same. But it cannot be repaired. The OP-2 also tried to repair the same showing no deficiency in service in his part. At the juncture of hearing argument the complainant iterates that the mobile in question has got inherent/manufacturing defects. So he urged for appointment of an expert to establish the averment and his prayer for such appointment was allowed vide order No. 12, dated 02.8.2016. As per order No. 13 it is seen that the complainant has provided the name and address of the person i.e. the Proprietor, Nexgen Services, Burdwan upon whom the notice will have to be served in connection with the expert opinion to detect any inherent defects. Accordingly summon was issued to the Proprietor, Nexgen Services, Burdwan. Subsequently, the Proprietor, Nexgen Services, Burdwan appeared through his ld. Advocate by filing Vokalatnama. As per order No. 17, dated 21.11.2016 the complainant had been directed to produce the mobile in question before the Proprietor, Nexgen Services, Burdwan, being asked by the proprietor, Nexgen Services, Burdwan for examining the mobile for ascertainment of any inherent/manufacturing defects. But till the date of hearing of the argument, the complainant failed to produce the mobile in question as per aforesaid order before the proprietor, Nexgen Services, Burdwan for expert opinion regarding inherent defects of the mobile. Thus the complainant fails to prove his case. Hence, the complainant looses his case.

            Accordingly, it is

O r d e r e d

that the Consumer Complaint being No. 207/2015 is hereby dismissed on contest against the OP-2 and dismissed ex parte against the OP-1&3 without any cost.

            Let plain copies of this order be supplied to the parties free of cost as per provisions of law.

                             (Asoke Kumar Mandal)        

             Dictated and corrected by me.                                                              President      

                                                                                                                   DCDRF, Burdwan

                    (Pankaj Kumar Sinha)

                    Member

                     DCDRF, Burdwan

                                                      (Silpi Majumder)                        (Pankaj Kumar Sinha)

                                                              Member                                             Member

                                                     DCDRF, Burdwan                            DCDRF, Burdwan