DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.55 of 02-03-2015

Decided on 11-09-2015

Gurjant Singh aged about 60 years S/o Ajmer Singh R/o VPO Burj Sema, Tehsil Maur, District Bathinda.

........Complainant

Versus

1.Intex, D-18/2, Okhla Ind. Area, Phase-II, New Delhi-110020, through its Managing Director/Director.

2.Pappu Watch Company, Shop No.15, PRTC Market, Court Road, Bathinda, through its Proprietor/Manager/M.D/Partner/Incharge.

3.Unitech Care Centre, # 383-A/2481-A, Near Street Bangi House, Mehna Marg, Bathinda, through its Proprietor/Manager/M.D/Partner/Incharge.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh.M.P Singh Pahwa, President.

Smt. Sukhwinder Kaur, Member.

Sh.Jarnail Singh, Member.

Present:-

For the Complainant: Smt.S.K. Ahluwalia, counsel for the complainant.

For Opposite parties: Opposite party Nos.1 and 3 ex-parte.

Sh.Naresh Garg, counsel for opposite party No.2.

ORDER

M.P Singh Pahwa, President:-

1. The complainant Gurjant Singh (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Intex and Others (here-in-after referred to as opposite parties).

2. Briefly stated, the case of the complainant is that opposite party No.1 is manufacturer of the Intex mobile and opposite party No.2 is the dealer/distributor of opposite party No.1 and sells the Intex mobiles and opposite party No.3 is the service centre. The complainant has purchased one mobile handset make Intex Power + bearing IMEI No.M911318255490272 and S911318255790275 for Rs.1550/- vide receipt/bill No.144 from opposite party No.2 with sufficient warranty on dated 6.1.2014.

3. It is alleged that after 2 months of purchase, the abovesaid mobile handset stopped working as there was defect in it relating to 'Battery Lower Problem'. The complainant made complaints with opposite party No.2, it asked him to approach opposite party No.3. Opposite party No.3 checked the mobile handset and kept it in its custody and asked the complainant to come after a few days and after some day handed over it to him after curing. It is further alleged that after sometime the same problem reoccurred. The complainant many times approached the shop of opposite party No.3 for the same problem. On 13.6.2014, the complainant again approached the shop of opposite party No.3, it after checking the mobile handset, kept the same with it and asked him to come after sometime. The complainant again approached the shop of opposite party No.3, it revealed that the defect is not cured and asked him to come after sometime.

4. It is further alleged that after 12 days also, the problem was not cured. The complainant many times approached opposite party No.3, but the mobile handset was not cured. On 20.2.2015, the complainant again approached opposite party No.3, it told him that there is manufacturing defect in the mobile handset, which is not curable and returned him the mobile handset in question. The complainant many times approached opposite party Nos.2 and 3 and requested them either to replace the mobile handset with new one or to refund its price as it is within the warranty period, but to no effect.

On this backdrop of the facts, the complainant has alleged deficiency in service and unfair trade practice on the part of opposite parties and prayed for directions to opposite parties either to replace the mobile handset or to refund its price i.e. Rs.1550/- and to pay compensation of Rs.20,000/-. Hence, this complaint.

5. Upon notice, none has appeared on behalf of opposite party Nos.1 and 3. Hence, ex-parte proceedings were taken against opposite party Nos.1 and 3.

6. Opposite party No.2 appeared through counsel and contested the complaint by filing its written version. In written version, opposite party No.2 raised the legal objections that the complaint is not maintainable and mobile handset is not covered with any warranty. The warranty period has already elapsed. The complainant does not come under the definition of consumer.

7. On merits, it is admitted that the warranty for one year given by manufacturer (By opposite party No.1 only) and service centre i.e. opposite party No.3 provided the services on behalf of opposite party No.1. The warranty has no concern with opposite party No.2. It is pleaded that the complainant never approached opposite party No.2 during the warranty period i.e. 6.1.2014 to 5.1.2015 for any manufacturing defect. The complainant might have approached opposite party No.3 for any defect in the mobile handset, but the same is not in the knowledge of opposite party No.2. Moreover the warranty given by opposite party Nos.1 and 3 only, this fact is duly mentioned in the bill No.144 dated 6.1.2014. After controverting all other averments, opposite party No.2 prayed for dismissal of complaint.

8. Parties were afforded opportunities to produce evidence.

9. In support of his version, the complainant tendered into evidence his own affidavit, (Ex.C1); copy of bill, (Ex.C2) and job sheet, (Ex.C3) and submitted the written arguments.

10. Opposite party No.2 tendered into evidence affidavit of Shaikhar Garg dated 13.8.2015, (Ex.OP2/1) and submitted written arguments.

11. We have heard learned counsel for parties and have gone through the written arguments.

12. Learned counsel for complainant has reiterated his version as set up in the complaint and written arguments. It is further submitted by learned counsel for complainant that although, the mobile handset has been purchased by the complainant on 6.1.2014 and complaint has been filed on 2.3.2015, but it cannot be concluded that the warranty period has expired. The job sheet dated 13.6.2014, (Ex.C3) is placed on record, which proves that the complainant reported battery problem. There is nothing on record to show that this problem is solved. The averment of the complainant is that despite repeated visits, the problems in the mobile handset were not resolved. Opposite party No.3 has issued the job card being agent of opposite party No.1. Neither opposite party No.1 nor opposite party No.3 have come forward to contest the claim of the complainant. Therefore, it cannot be concluded that the warranty period has expired when the problem was already reported within the warranty period and cannot be resolved.

13. It is further submitted by learned counsel for complainant that opposite party No.2 has sold the mobile handset, it cannot escape from its liability only by pleading that the defect is to be removed by manufacturer or its service agent. The mobile handset was purchased on the assurance of opposite party No.2. As such, opposite party No.2 is also equally responsible to get the mobile handset repaired from the manufacturer (opposite party No.1) or its service centre i.e. opposite party No.3.

14. On the other hand, learned counsel for opposite party No.2 has submitted that no effective order can be passed against opposite party No.2. Opposite party No.2 simply sold the mobile handset. The complainant has produced the bill, (Ex.C2), as per this bill, the warranty is by company only. Therefore, opposite party No.2 has been unnecessarily dragged in this complaint. Moreover the mobile handset was purchased on 6.1.2014 and complaint has been filed on 2.3.2015 i.e. after expiry of warranty period. As such, the complaint is liable to be dismissed qua opposite party No.2.

15. We have given careful consideration to these submissions.

16. It is not disputed that the complainant purchased the mobile handset from opposite party No.2 on 6.1.2014. The complainant has placed on record service request (Job card, Ex.C3), which proves that the complainant reported defect of battery back up. The allegations of the complainant are that this defect is not resolved despite repeated visits. Opposite party Nos.1 and 3 have not come forward to contest the claim of the complainant. Therefore, in such circumstances, there is no reason to disbelieve this evidence of the complainant. Of-course, the mobile handset was purchased on 6.1.2014 and complaint has been filed on 2.3.2015 i.e. after one year from the date of purchase. As per opposite party No.2, the warranty is only for one year, but the allegations of the complainant corroborated the documentary evidence, proves that he reported the defect on 13.6.2014. There is nothing on record to prove that this defect has been resolved in the mobile handset. Therefore, when the complainant has already requested to repair the defect within the warranty period and it is not resolved, it cannot be concluded that now the warranty period has elapsed. Admittedly, opposite party No.1 is the manufacturer and opposite party No.2 is seller of mobile handset and opposite party No.3 is care centre of opposite party No.1. Opposite party No.2 had sold the mobile handset to the complainant vide bill, (Ex.C2). As per this bill, the warranty is by the company only. The mobile handset was purchased on 6.1.2014 and defect was reported on 13.6.2014, which proves that there was no defect in the mobile handset in question at the time of sale by opposite party No.2. Therefore, keeping in view the terms and conditions mentioned in the bill, (Ex.C2), no fault can be found with opposite party No.2. Opposite party No.3 is stated to be authorized service centre. There is no independent contract with opposite party No.3. Opposite party No.3 has to act as an agent of opposite party No.1, who is manufacturer of mobile handset. It is responsibility of the manufacturer to get the mobile handset repaired. Therefore, no separate order is required against opposite party No.3.

17. For the reasons recorded above, the complaint is partly accepted with Rs.500/- against opposite party No.1 and dismissed qua opposite party Nos.2 & 3. Opposite party No.1 is directed to get repaired the battery of mobile handset in question (replaced, if not repairable).

18. The compliance of this order be made within 6 weeks from the date of receipt of copy of this order.

19. This case could not be decided within the statutory period due to heavy pendency.

20. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

11-09-2015

(M.P Singh Pahwa)

President

(Sukhwinder Kaur)

Member

(Jarnail Singh)

Member