Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 397.
Instituted on : 31.10.2014.
Decided on : 14.07.2016.
Ravi @ Ravi Parkash son of Tek Ram, resident of House No.715./34, Hari Singh Colony, Sunarian Chowk, Rohtak.
………..Complainant.
Vs.
- Jagdamba Telecom, Gol Market, Gohana Adda, Rohtak through its Proprietor.
- Radhey Radhey Communication, Authorised Service Centre, For Spice Retail Ltd., 1st Floor, Gopal Complex, near Petrol Pump, Chhotu Ram Chowk, Rohtak through its proprietor.
- Spice Mobility Ltd. S. Global Knowledge Park, 19A & 19B, Sector-125 Noida-201301(U.P.) through its Proprietor/Director.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Sh.Birbal Sohail, Advocate for complainant.
Opposite parties No.1 & 2 already exparte.
Sh.Kunal Juneja Advocate for opposite party no.3.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he had purchased a Mobile phone make Spice –MT-492 bearing IMEI No.911256501013300 on 13.01.2014 from the opposite party no.1 for a sum of Rs.7250/- vide receipt no.4167 dated 13.01.2014 with warranty of one year. It is averred that opposite party no.3 is the manufacturer of the said mobile and opposite party no.1 is retailer and opposite party no.2 is the authorized service centre of same. It is averred that after purchase of the said mobile, it became defective within warranty period as the same is having hanging and display problems and complainant contacted the opposite party no.1 & 2 and requested to replace the same but the opposite party no.1 and 2 temporarily removed the defects which appeared again and complainant again contacted the opposite parties. Opposite party no.2 on inspection kept the mobile on dated 08.08.2014 and asked the complainant to collect the same within 3-4 years but on visiting the opposite party no.2 it was informed that the said mobile phone is having manufacturing defect and is therefore, sent to the manufacturing company and till date the same has not been returned to the complainant. It is averred that the act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that the opposite parties may kindly be directed to replace the mobile phone in question with new one of to refund the price of mobile set alongwith interest, compensation and litigation expenses to the complainant.
2. Notice of the present complaint was sent to the opposite parties. Notice sent to opposite party no.1 & 2 received back duly served but none appeared on their behalf and as such opposite party No. 1 & 2 were proceeded against exparte vide order dated 09.12.2014 of this Forum. Opposite party no.3 appeared and filed its written reply submitting therein that opposite party no.1 is not authorized retailer on behalf of answering opposite party and accordingly the answering opposite party cannot be held liable for any act/omission of OP No.1. It is averred that there is no manufacturing defect in the handset in question. All the other contents of the complaint were stated to be wrong and denied. Opposite party prayed for dismissal of the complaint with costs.
3. Both the parties led evidence in support of their case.
4. Complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C7 and has closed his evidence. On the other hand, ld. counsel for the opposite party no.3 made a statement that written statement already filed on behalf of opposite party no.3 be also read in evidence.
5. We have heard ld. Counsel for the parties and have gone through the material aspects of the case very carefully.
6. There is no rebuttal to the evidence that as per invoice Ex.C6 the complainant had purchased the mobile set for a sum of Rs.7250/- from the opposite party no.1 on dated 13.01.2014 of Spice Company model MT-492. It is also not disputed that as per job sheet Ex.C5 there was some problem of display which appeared during warranty period. As per complaint and affidavit filed by the complainant, the defects could not be removed by the opposite parties and the set in question is in the possession service centre.
7. After going through the file and hearing the parties it is observed that the mobile in question was purchased by the complainant on 13.01.2014 and the defect in the mobile set appeared during the warranty period which could not be repaired/replaced by the opposite parties during the warranty period. Complainant also served a legal notice dated 24.09.2014 upon the opposite party no.1 & 2 but the same was not replied. It is also on record that opposite party no.1 & 2 did not appear despite service and as such it is presumed that they have nothing to say in the matter and therefore, all the allegations leveled by the complainant against the opposite party no.1 & 2 regarding defect in the mobile set stands proved. In this regard reliance has been placed upon the law cited in 2014(1)CLT588 titled Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others whereby Hon’ble Delhi State Commission has held that: “In the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product-if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous”. In view of the aforesaid law which is fully applicable on the facts and circumstances of the case it is observed that it is a fit case where the refund of price is justified. As per the statement made by ld. counsel for the complainant on dated 08.07.2016, the set in question is with the customer Care.
8. In view of the facts and circumstances of the case, it is observed that the manufacturer is liable to refund the price of mobile set. As such it is directed opposite party No.3 i.e. manufacturer shall refund the price of mobile set i.e Rs.7250/-(Rupees seven thousand two hundred fifty only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 31.10.2014 till its realization and shall also pay a sum of Rs.3000/-(Rupees three thousand only) as litigation expenses to the complainant within one month from the date of decision. The set in question is already with the opposite party no.2 i.e. service centre. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
14.07.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member.