This is a petition of complain U/S- 12 of Consumer Protection Act, 1986 filed by the complainant against the O.Ps named above.
The fact of the case of the complainant, in short, is that the complainant purchased a Mobile Handset bearing IEMI No. 911584950110689, 911584950110677 and Battery No. 17K08168803533 from O.P No. 2 / Mobile Gallery, Marwaripatty, Alipurduar on 21/08/2017 at cost price Rs. 6,500/-. Soon after purchase of the said Mobile the complainant detected that the phone was malfunctioning. Thereafter the complainant approached the O.P No. 2 to sort out the malfunctioning defects of the Mobile but he did not give any satisfactory reply. Thereafter the complainant visited the shop of O.P No. 2 for removing the defects of his Mobile but no action was taken by the O.P.
The further case of the complainant is that in the month of May, 2018 the complainant again visited the retailer then the retailer informed that the complainant should go to the O.P No. 1 / Intex Care. The complainant visited the Intex Care of Alipurduar. But they flatly refused to repair the Mobile Handset without thorough observation and stated that the Mobile Battery has been more than six months old so their liability towards the Handset has been come to an end. The complainant several times requested the O.Ps to remove the defects but they did pay any heed.
Hence, the complainant filed this case against the O.Ps with a prayer to direct the O.Ps to pay the cost of the Mobile amounting to Rs. 6,500/- and also the complainant has prayed for an amount of Rs. 40,000/- towards his mental agony from the O.Ps and also claimed a sum of Rs. 30,000/- towards his loss of business as a practicing advocate and also prayed for a sum of Rs. 15,000/- as costs of the litigation from the O.Ps.
The O.P No. 2 has appeared before this Forum and contested the case by filing written version denying all the allegations as leveled by the complainant against him.
As per Track Consignment Report summons delivered to the O.P No. 1. Despite none appeared and contest on it’s part. Hence, the case proceeded ex-parte against the O.P No. 1.
The complainant has filed evidence-on-affidavit and also filed written argument.
The O.P No. 2 has also filed evidence-on- affidavit as well as written argument.
We have heard argument from both sides and also perused the other materials on record very carefully.
In this context, the following issues are necessarily come up for consideration to reach just decision of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s.2 (1)(d)(i) of Consumer Protection Act ?
- Has this Forum jurisdiction to entertain the instant case?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
As all the points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience.
The complainant is a resident of Village- Khirerkot, P.O. – Dalimpur, P.S.- Falakata & Dist. Alipurduar and the O.P No. 2 / Mobile Gallery, Marwaripatty, Alipurduar within the district of Alipurduar. The complainant purchased Mobile Handset from the shop of O.P No. 2. Naturally, the complainant is a bona fide consumer of the O.Ps. Thus the complainant is a consumer as per provision of Sec. 2(1)(d)(i) of the Consumer Protection Act, 1986.
It is evident from the record that residential address of the complainant is at Village- Khirerkot, P.O. – Dalimpur, P.S.- Falakata & Dist. Alipurduar and the shop of the O.P No. 2 is also situated at Alipurduar within the territorial jurisdiction of this Forum. The claim amount is also less than the pecuniary limit of this Forum. So, we find and hold that this Forum has ample jurisdiction to entertain the instant case.
On hearing argument of both sides as well as on perusal of the materials available on case record it is revealed that the disputes arose between the parties centering the manufacturing defects of the Mobile Phone Set. The O.P No. 2 is an authorized retailer under O.P No. 1 who has liability to mention the warranty period of one year on the Mobile Handset for it’s manufacturing defects and to mention sixth months warranty period on defects of it’s battery and charger. The cash memo (the purchase bill) of the Mobile Handset indicates that liability has been carried out by the O.P No. 2 and when he advised the complainant to ask Intex Care at Alipurduar. To determine the manufacturing defects the complainant ought to invoke the provision laid down U/S-13(1)(C) of the C.P. Act, 1986 against the O.P No. 1. The O.P No. 2 had obligation to advice the complainant to that effect and that has been done by the O.P No. 2 and that has been admitted by the complainant in Para 10 & 11 of the complaint. Several approaches and demands on part of the complainant to the O.P No. 2 require proof by producing sufficient oral as well as documentary evidence and that has not been done by the complainant though it is immaterial considering liability of the O.P No. 2. The O.P No. 2 has performed his obligatory duties for which the complainant visited the Intex Care of Alipurduar. Therefore, there is no deficiency in service on part of the O.P No. 2. Inspite receipt of summons the O.P No. 1 did not appear and contest this case as such O.P No. 1 can not escape from the liability of manufacturing defects of the purchased Mobile Phone of the complainant. The cash memo issued from Mobile Gallery indicates that the complainant is a bona fide consumer of O.P No. 1 for which the O.P No. 1 has liability to compensate the complainant.
Considering the above facts and circumstances we are of the opinion that the instant case be dismissed against the O.P No. 2 and complainant be awarded ex-parte against the O.P No. 1.
Thus all the points are disposed of accordingly.
Fees paid are correct.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and the same is dismissed against the O.P No. 2 on contest and the instant case be and the same is allowed ex-parte against the O.P No. 1. The complainant do get a decree amounting to Rs. 6,500/- as purchased price of his Mobile Phone Set and he also do get a further decree amounting to Rs. 3,500/- for harassment and the complainant do get a further decree amounting to Rs. 2,000/- for his mental agony and sufferings i.e. total Rs. 12,000/-(Twelve thousand) only. Authority concerned of the O.P No. 1 INTEX Technologies (India) Ltd., Regd. Office at B26, Sector-83, Noida, Dist. – Goutam Budh Nagar, Uttar Pradesh, Pin – 201301 is hereby directed to pay the decreetal amount of Rs. 12,000/-within 30 days from this day failing which the complainant will be at liberty to put this decree into execution according to law.
In case for realization of the decreetal amount by execution the complainant will be entitled to 7% interest per annum on the decreetal amount from the date of filing of this case from 30/05/2018 till realization of the entire decreetal dues.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me-
