PER:

Nidhi Verma, Member

1        The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.

2        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section  11 and 12 against the opposite parties on the allegations that the complainant has purchased one mobile model Karbonn K9Viraat4gIMEI No. 911535352017324, 91153535017332 to the value of Rs. 5600/- by cash vide bill No. 103 dated 17.1.2017 from the opposite party No. 2 as manufactured by the company of opposite party No. 1 as told by the opposite party No.2. As per complainant told that the above said mobile started giving trouble after about 2-3 months and the said mobile was brought to the service centre i.e. opposite party No. 3 and on its visual inspection the opposite party No. 3 told that the mobile is OK. After few days, the said mobile again started giving trouble and said mobile was again brought the service centre of opposite party No. 3 and the service centre has put remarks on the job sheet that touch screen gets hanged and the service job sheet was neither numbered nor put any date on the service job sheet. However, said job sheet signed by the Manager of the respective service centre of opposite party No. 3. On close/ minor inspection, it was found from the service job sheet that the said service job sheet is fictitious and the same was not having any proper printing neither was having any number/ date nor the same was computerized. The complainant visited the service centre again about 5-6 times and they just only updated new software every time and no proper repair was done. After repair, next day keypad stops functioning and phone has to start every time for making keypad functioning and the service centre opposite party No. 3 failed to repair the said mobile set and the same was repeatedly giving troubles. The opposite party No. 3 instead of repairing the mobile which was under warranty advised the complainant to sell the same and get the new one as the mobile cannot be repaired since the same has some technical default which cannot be repaired by the said service centre inspite of the fact that complainant has wasted her time and energy by visiting the aforesaid service centre 5-6 times and the behavior of the service centre was quite rude and not up to the mark which is against the ethics of the profession. The Cell Hut repair Centre called the complainant that they are ready to exchange the above said mobile, accordingly in order to maintain cordial relations, complainant agreed to get the mobile exchanged and complainant handed over the said mobile to repair shop on 26.7.2017 and the Cell Hut handed over the mobile Karbonn on dated 7.8.2017  which was KS VIRAAT 4G IMEI No. 911535352017324, 91153535017332 and after few days, the said new mobile started giving the trouble and said mobile was handed over to Cell Hut repair shop on  14.8.2017 vide Job Sheet No. 2316 but the repair shop failed to repair mobile and above said mobile is still giving same problem. Thereafter, the complainant served a legal notice dated 17.9.2017 upon the opposite parties thereby calling them that opposite parties have cheated her by handing two defective mobiles, as such complainant is not interested to keep said defective mobile and had suffered huge loss in all respect and that loss be compensated by receiving back the said mobile and making payment of Rs. 5600/- which is cost of mobile plus Rs. 30000/- as compensation plus legal fee of two notices bearing Rs. 10000/-. The complainant has prayed that the opposite parties may kindly be directed to return Rs. 5600/-  i.e. cost of mobile set alongwith interest @ 18% p.a. from the date of purchase of mobile till its realsiation and Rs. 30000/- as compensation and Rs. 10000/- as litigation expenses. 

3        After formal admission of the complaint, notice was issued to Opposite Parties and opposite parties No. 1, 3 appeared through counsel and filed written version and contested the complaint by taking preliminary objections that the complaint is false and baseless and the complainant has no locus standi or cause of action and the complainant is guilty of suppressing true facts and he is estopped from filing the present complaint. The present complaint is not maintainable against the opposite parties No. 1, 3. The opposite parties No. 1 and 3 have been dragged in to this litigation without any fault. The allegations made in the complaint are baseless, frivolous devoid of any merit without any valid cause of action against opposite parties. The complainant in the garb of this false complaint wants to black mail the opposite parties by way of extract money. The complainant acted with a malafide intention to get wrongful gain.   There is no deficiency of service on the part of the opposite parties No. 1 and 3 towards the complainant. The opposite parties No. 1 and 3 are not liable to pay any damages to the complainant. The complaint is filed in order to get wrongful gain. The complainant tried her level best to extort money from the opposite parties No. 1 and 3. For this purpose all possible tactics were used. In spirit of these pressure tactics, the opposite party Nos. 1 and 3 stood up and did not succumb to the threats as opposite parties No. 1 and 3 had done nothing wrong. Every customer get one year limited warranty period subject to terms and conditions, contained in the warranty card and that the warranty on the mobile set is not absolute but limited to terms and conditions. The brief extract is as “this limited warranty period does not cover normal wear and tear including without limitation, wear and tear of camera lenses, batteries and display, transport cost, defects caused by rough handling, by bending, compressing, or dropping, water locked etc. or also defects or damage caused by misusage of the products including the use, contrary to the instruction provided by the company or other acts beyond control of company or service centre. On merits, it was pleaded that the complainant approached before the opposite party No. 3 service centre on 14.8.2017 for hanging problem and after solving the problems by the opposite party No. 3 the same set in question was handed over to the complainant with OK condition and after that the complainant never turned up to opposite party office for the said problems. The complainant has also not suffered any harassment and is not entitled to anything rather complaint merits dismissal with exemplary costs. The complainant could not produced any documentary evidence on record with the complaint, and the said set have no any manufacturing defects, so the mobile set cannot be ordered to be replaced and no case is made out for refund of the price and opposite parties No. 1, 3 have denied the other contents of the complaint and prayed for dismissal of the same 

4        Notice was issued to the opposite party No. 2, but the opposite party No. 2 did not appear despite service, therefore, the opposite party No. 2 was proceeded against exparte.

5        To prove the case, Ld. counsel for the complainant has placed on record affidavit of complainant Ex. C-1 alongwith documents i.e. copy of bill Ex. C-2, copy of the classification of mobile Ex. C-3, copy of job sheet Ex. C-4, copy of the e-mail Ex. C-5, copy of legal notice dated 19.7.2017 Ex. C-6, copy of the e-mail Ex. C-7, C-8, copy of Job sheet Ex. C-9, copy of the e mail Ex. C-10, copy of the legal notice dated 11.9.2017 Ex. C11, 4 post receipts Ex. C-12 and closed the evidence. On the other hands, Ld. counsel for the opposite party No. 1 has tendered in evidence email Ex. OP1/1 and closed the evidence.

6        We have heard the Ld. counsel for opposite parties No. 1 and 3 and have gone through the record on the file.

7        In the present case, the complainant had purchased mobile phone K9Viraat4gIMEI no. 9115352017324, 91153535017332 to the value of Rs 5600/- from the OP No 2 . After using mobile phone about 2-3 months it started giving trouble and was brought to the service centre of OP no 3 and on its visual inspection the OP No 3 told that the mobile is OK . After few days it again  started giving trouble and complainant again visited the service centre of OP No 3 and the service centre has put remarks on the job sheet that touch screen gets hanged and the service job sheet (EX.C4 )was neither numbered nor put any date on the service job sheet.  The complainant visited the service centre again about 5 -6 times and they just only updated new software every time and no proper repair was done . After few days mobile phone giving trouble related keypad and need to restart every time to use the phone .  The service centre of OP No. 3 failed to repair the mobile phone and the phone repeatedly giving troubles ,even they advised the complainant to sell the mobile phone and get the new one as the mobile can’t  be repaired since the same has some technical fault. Later the cell Hut repair centre called the complainant that they are ready to exchange the mobile phone, complainant handed over the mobile phone to repair shop on 26.07.2017 and the cell Hut handed over the mobile Karbonn on dated 07.08.2017 which was KS VIRAAT 4G IMEI NO 911535352017324, 01153535017332 and after few days the new mobile started giving the trouble and complainant again handed over it to cell Hut repair shop on 14.08.2017 vide job sheet no 23161 (EX . C9) but the repair shop failed to repair mobile and it’s  still giving the same problem. Thereafter complainant served legal notice dated 11.09.2017 (EX.C 11)  upon the OPs . Opposite party No 1 and 3 stated in their written version that the every customer get one year limited warranty period subject to terms  and conditions, contained in the warranty card and that the warranty on the mobile set Is not absolute but limited to terms and conditions. The brief extract is as " this limited warranty period does not cover normal wear and tear including without limitation, wear and tear of camera lenses, batteries and display, transport cost, defects caused by rough handling, by bending, compressing, or dropping , water locked etc or also defects or damage caused by misuse of the products including the use, contrary to the instruction provided by the company or other acts beyond control of the Company or service centre. Moreover the complainant approached the OP NO3 service centre on 14.08.2017 for hanging problem and after solving the problem the same set was handed over to the complainant with ok condition and after that the complainant never turned up to the OP.

8        We are of the consider view that the complainant was facing trouble in using mobile phone and he visited the OP NO3 service centre again and again for its repair and OP no 3 service centre provided him with service job sheet as Ex C-4 and Ex C-9 . Moreover complainant forwarded emails to OP for the repair and trouble that mobile phone is giving him as an evidence he attached EX C 5,C7,C8. Further  complainant send the legal notice dated 11.09.2017 (EX.C11)  which proves that complainant approached the OP no 3 again and again for repair of the mobile phone moreover the opposite parties have stated that complainant never turned up to the OP after 14.08.2017 which is not supported by any evidence.  Further OP has filed written version but has not tendered any affidavit to prove their stand taken in their written version . The OP has not proved their stand through evidence by way of affidavit. Without affidavit the written version has no value.  Section 38(6) of the Consumer Protection Act, 2019, reads as:-

Every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record.

          In the present case the opposite party has filed the written version and the stand taken by the opposite party has not been proved by way of affidavit and documentary evidence and the without evidence written version cannot be read.

9        In view of above discussion the present complainant is allowed in the favour of complainant and directed the opposite parties to return Rs 5,600/- that is the cost of the mobile phone. The complainant has been harassed by the opposite parties unnecessarily for a long time. The complainant is also entitled to Rs. 3,500/-( Rs. Three Thousand Five Hundred only) as compensation on account of harassment and mental agony and Rs 3,000/- (Rs. Three Thousand only) as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Copy of order will be supplied by District Consumer Disputes Redressal Commission, Amritsar to the parties as per rules. File be sent back to the District consumer Disputes Redressal Commission, Amritsar.

Announced in Open Commission

14.07.2022