Order-11.
Date-18/01/2018.
AUTHOR. SRI RABIDEB MUKHOPADHYAY, MEMBER
This is an application u/s.12 of the C.P. Act, 1986. It is stated that OP-1 is the manufacturer, OP-2 is the dealer of INTEX brand of Mobile sets and OP-3 is the Service Centre responsible for maintenance and back up service for INTEX mobile sets.
The complainant stated that he had purchased an INTEX Mobile Aqua Ace Mini set (IMEI 911499900192404) from the vendor Agnicom Communications, E-Mall, First Floor, shop no. 107A, 6, Chittaranjan Avenue, Kolkata-700072, at a consideration of Rs 7200/- under Bill No.3391 dated 16/5/2016(Annex-’A’).
It is stated that at the time of purchase, it was held out that the said Mobile set is compatible with 4G SIM Card and on such assurance of OP-2, the complainant purchased the Mobile set.
The complainant expressed grievance that after purchase of the said set, it malfunctioned. The set stopped working abruptly. Initially, the signal tower on the Mobile set was not in full height on two sim card slots. The signal tower gradually decreased and stopped working permanently. The complainant initially was under impression that the problem was with the service provider but it latter emerged that the problem was in the Mobile set.
It is stated that the complainant then went to OP-3 who informed him that no service could be done there after which the complainant sent complaint to OP-2/seller who acted on behalf of the OP-1. In spite of approach and request and reminders, OPs failed and neglected to heed to the complainant. It is also stated that the matter of malfunctioning of the disputed mobile set with its stop working was promptly reported to OPs within warranty time. Such acts and/or omissions on behalf of the OPs are causing mental anxiety to the complainant.
The complainant stated that he paid necessary costs and charges on demand, to the OP-2, still OP-2 failed to give reasonable service back up for the reasons best known to them. The complainant stated apprehension that he has reasons to belief that the Mobile set suffered from incurable inherent manufacturing defects and under compelling circumstances, the complainant caused service of Notice dated 19/12/2016 to act as demanded in the said notice, under Speed Post to OP-2, who received the same (Annex-’B’). But OPs failed to address the said notice, which is deficiency in service.
The complainant prayed for refund of Rs 7200/- with interest thereon with compensation for mental agony and physical harassment and other fitting orders.
WRITTEN VERSION
No WV has been filed by the OPs.
Point for Decision
- Whether the complainant is a consumer under the OPs;
- Whether the OPs are deficient in service;
- Whether the complainant deserves relief.
Decision with Reasons
1) We have perused the documents filed by the complainant including copy of Tax Cash Memo. No. 3391 date 16/5/16 for Rs 7200/-, Copies of Features of the device in running pages 8 to 11, copy of letter dated 19/12/2016 written by the complainant to the OP-2/Seller(RP-12) and copy of India Post Domestic Track record showing delivery of the letter to OP-2 on 21/12/2016.
2) It appears that in spite of delivery of summons to all OPs, they did not bother to file Written Version. One Avishek Bose appeared on behalf of OP-3 on 10/10/2017 and sought time to file WV but thereafter OP-3 never turned up. OP-1&2 never turned up nor filed any version.
3) As the OPs did not take part in the proceedings, they lost the opportunity to controvert the points of allegations of the complainant. In fact, OPs’ absence in spite of receiving Forum’s summons amounts to admission of the allegations of the complainant.
4) At page-3 (Running Page 10) of the Features, it appears, inter alia, that the supported Networks are 4G LTE, GSM and the internet Connectivity is 4G, 3G, Wi-Fi, GPRS and EDGE. As stated at complaint para3, the OP-2/Seller also held out that the Mobile set was compatible to 4G SIM Card. But the device could not function and stopped working abruptly.
5) When the non-functioning set was taken to OP-3, it was opined by OP-3 that no service could be done by them for the set. It was well within warranty time that OP-2 was reported verbally and through letter dated 19/12/2016 by the complainant but the OP-2 sat tight. OP-2 neither replied to the letter dated 19/12/2016 nor took any steps to refund the cost value of the Mobile Set. The complainant had to run from pillar (OP-3) to post (OP-2). The deficiency lies mainly on the OP-2 who acted on behalf of the Principal. As per conditions 2 and 4 written below the VAT No. of the Cash Memo. that liability for any problem during Warranty period vests on the Principal. Allegedly, the Mobile set suffered from inherent defect.
6)The complainant having paid consideration for the Mobile set to the OP-2 is no doubt consumer under the OP-2 (and under the OP-1 under Agent-Principal theory or under Vicarious Liability) as defined under section 2(1)(d) (i) with (ii) of the Consumer Protection Act, 1986 as amended so far. The OP-2 having received the consideration money from the complainant promising service to them is the service provider as defined under section 2(1)(o) of the Act. Since the OP-2 failed to keep its promises to the complainant, OP-2 with OP-1 is deficient as clarified under section 2(1)(g) of the Act. OP-3 cannot be held liable in the case though they acted on behalf of the Principal, because OP-3 had, supposedly, nothing to do with the device.
In the circumstances, we are constrained to pass
ORDER
That the complaint be and the same is allowed exparte against OP-1 and OP-2 and dismissed against OP-3, in terms of section 13(2)(b)(ii) of the C. P. Act, 1986;
That OP-2 and OP-1 are directed to jointly and severally refund Rs 7200/- being the purchase price of the subject device, Rs 2000/- as compensation for physical harassment and mental agonyand Rs 2000/- as litigation cost, to the complainant, within 30 days from the date of this order;
That on non-compliance of the order by the OP-1 and OP-2 within stipulated time, the complainant shall have the liberty to put the order into execution in terms of section 27 of the Act ibid.
Let copies of the order be handed over to the parties when applied for.
