Delhi

West Delhi

CC/17/29

SURAJ - Complainant(s)

Versus

KARBONN MOBILE - Opp.Party(s)

07 Nov 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTE REDRESSAL commission,WEST DISTRICT, JANAKPURI,

NEW DELHI

 

C C No. 29/2017

IN THE MATTER OF:

Suraj Paswan

S/o Sh. Jugeshwar Paswan

R/o Plot no. 27, Press Enclave

Street no. 5, Balaji Road,

Near Sunday market, Uttam Nagar,

New Delhi – 110059.                                     ……...COMPLAINANT

VERSUS

1. M/s Shree J. P. Electronics &Furniture

Plot no. C-2, Budh Bazar Ph- II-II, Vikas Nagar,

Uttam Nagar, New Delhi – 110059.

 

2. M/s Saraswati International Technologies

Plot no. 140, Ist Floor, Kakrola Housing Complex,

Dwarka Mor, Near Metro Pillar no. 789,

New Delhi – 110059.

 

3. Head Office Karbonn Mobile

D-170, Okhla Industrial Area,

Phase- I, New Delhi – 110020.…… Opposite Party

 

DATE OF INSTITUTION:    JUDGMENT RESERVED ON:          DATE OF DECISION :

10.01.2017 01.11.2022 07.11.2022

 

Ms Sonica Mehrotra, President

Ms Richa Jindal, Member

Mr Anil Kumar Koushal, Member

 

Order passed by Ms. Richa Jindal, Member

 

 

 

 

 

 

ORDER

1. The complainant has filed a present complaint under section 12 of the Consumer Protection Act,1986. Brief facts of the complaint are as follows:

1. The complainant is a resident of the above address. Opposite Party, No 1 is authorised dealer of various types and brands of mobile handsets. Opposite Party No 2 is the authorized service centre of OP No.3 and whereas Opposite Party No 3 is engaged in the business of manufacture of telecommunication equipment i.e.Karbonn Mobile Handsets.
2. The complainant had purchased a Karbon Mobile Hand Set Titanium S-10, from OP against Invoice/bill No.860, Book No. 18 dated 05.01.2016 for a total sum of Rs.6200/ inclusive of VAT.
3. The Opposite Party no. 1 had given the Warranty of one year for the said Handset at the time of its purchase.
4. After 07 months of its purchase, there erupted a technical fault/malfunctioning in the said Handset within the Warranty period.
5. The complainant approached OP No.2 on 17.08.2016 for getting the phone repaired, when OP No.2 took the phone and issued a job card.
6. Since then, the complainant had been approaching OP No.2 as well as OP No.3 to know the status of repairs of his phone, but the OP had been harassing the complainant by not returning the phone on one pretext or the other.
7. That having left with no option and under compelled circumstances, the complainant had to purchase another Mobile Hand Set for his personal use to meet his basic requirement and the complainant was made to suffer losses/damage on account of deficiency in service rendered by the respondents to the complainant.
8. According to the complainant, the Handset had a manufacturing defect, since the very beginning which could not be removed/rectified even by OP No.2 and in fact, they did not bother to replace the said defective handset sold to the complainant.
9. The complainant has suffered great mental and physical harassment and agony at the hands of the respondents and for the said harassment, the complainant had filed the present complaint before this Commission wherein he is claiming Rs.25,000/- as damages/compensation along with a refund of the cost of Karbonn S-10 mobile i.e. Rs.6200/- (inclusive of 5% Vat) as the Hand Set was defective.

 

2. Accordingly, on 18/01/2017, after hearing arguments on admission notice was issued to OPs returnable on 10/08/2017, wherein OP No. 1 & 3 appeared before the commission. OP No.3 filed a reply and OP No.1 took time for filing a reply, whereas OP no.2 failed to appear before Commission despite service of notice. Even the tracking report of the duly receipt of notice of the same has been placed on record on 10/03/2017.

 

3. OP No.1 was also served through court notice but OP No.1 didn’t turn up and ignored the court notice. This act of the OPs clearly shows that the OPs are avoiding/disrespecting the court proceedings although they have been duly served.

 

4. In M/s. Madan and Co. Vs. Wazir Jaivir Chand AIR 1989 SCC 630, the Hon’ble Supreme Court has held “That if a registered letter addressed to the person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's conduct. If he is staying away for some time all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to some other person authorized by him.” Further, Hon’ble Apex Court in State of M.P. Vs. Hira Lal &Ors. (1996) 7 SCC 523 has held that notices returned with postal remarks “Not available in the House”, “House Locked” and “Shop Closed", must be deemed that the notices have been served on the OPs. Accordingly, OP No.2 proceeded ex parte on 04-11-2016.

 

5. On the same day, OP No. 3 filed a reply and the matter was adjourned to 25/08/2017 for filing a reply of OP No.1 subject to a cost of Rs 500/-. Brief facts of the reply on behalf of OP No.3 are as follows:-
   1. The Complaint filed by the Complainant is frivolous, vexatious, devoid of merits and is an abuse of the process of law. The Complainant in order to succeed in his nefarious designs is levelling false allegations against the answering OP by suppressing material and correct facts (as detailed in the subsequent pleadings) from the Ld. Forum.
   2. The Complainant has approached this Ld. Forum, with unclean hands stating the distorted and inchoate facts with malafide intentions of misleading this Ld. Forum. The Complaint suffers from the virus of suppressiovarie, suggestiofalsi. Hence the same is liable to be rejected at the threshold.

2. The Complaint is filed on mere conjectures and surmises. The contents thereof are vexatious and malafide since it makes false and frivolous allegations against the answering OP, which are clearly an afterthought. There is no deficiency of service on the part of the answering OP (as explained in the subsequent pleading) and therefore no case is made out against the answering OP under the provisions of the Consumer Protection Act, 1986 ("Act"). The present complaint is, therefore, liable to be dismissed in limine with exemplary costs thereto under Section 26 of the Consumer Protection Act to drag a well-reputed company into unnecessary and unwanted litigation.
3. The Complaint is false and has been filed with an ulterior motive only to harass and humiliate the answering OP with the motive to extract a false amount of compensation as allegedly claimed. Hence Complaint is liable to be dismissed.
4. That the present Complaint is bad both in law and on facts. Prima facie the present Complaint of the complainant is not maintainable because the complainant has failed to point out even a single event where the deficiency of service on the part of the answering OP is shown. On the contrary, as per the admission of the Complainant and the documentary evidence, it is apparent that it is the Complainant who is guilty of for not caring the handset. Hence it is a well settled law that in the absence of deficiency of service the complaint before the Hon'ble Forum is not maintainable. It is further stated that the Complainant being at fault at his own end, the present complaint amounts to an abuse of the benevolence of the Hon'ble Forum and is therefore, liable to be rejected out rightly
5. There was no legal ground to file the present complaint against the answering OP. The answering OP company provides the warranty under the normal use and service ie.

(a) One year for mobile phone devices and

(b) Six months for batteries, chargers and accessories.

The Complianant had purchased the said Mobile handset on 05.01.2016, at which said mobile was working and the complainant was checked prior to the purchase of the said mobile handset. Therefore, there were no manufacturing defects in the disputed mobile handset. It is submitted that the Complainant approached the authorized service centre on dated 17.08.2016 and the handset of the Complainant was repaired by the service centre of the answering OP. opposite party repaired the above-said disputed mobile on the same day and duly informed the complainant to collect the repaired mobile handset. But the complainant refused to collect the same and demanded a new handset. It is possible that the problem occurred due to mishandling by the Complainant. Therefore, it's clear that the present complaint is based on a false & fabricated story against the answering Respondent/s.

6. The present complaint is filed by Complainant regarding the defect of Karbon S-10 with allegations that the answering OP fails to provide the service. It is possible that the problem occurred due to mishandling by the Complainant.
7. The Complaint is not maintainable in its present form. It is wrong to say that there was any technical or manufacturing defect in the mobile as the same was purchased by the Complainant after its proper checking thus the complaint is liable to be dismissed with costs.
8. OP No.3 had clearly mentioned in Warranty Card that the consumer shall have no coverage of benefits as claimed by the complainant in his complaint. The following conditions are not covered under the warranty.
   1. Defects or damage resulting from the use of the equipment in any form other than its normal customary manner.
   2. Defect or damage resulting from misuse, accident or neglect.
   3. Defect or damage from the improper testing operation, maintenance, insulation, alteration, modification or adjustment.
   4. Breakage or damage to antenna or display unless caused directly by defects in material.
   5. Equipment disassembled or repaired in such a manner to adversely affect performance, etc.
   6. Defect or damage due to spills of food, liquids or other substances.
   7. All plastic surfaces and all other exposed parts that are scratched or damaged due to normal use by customers.
   8. Transfer of ownership has taken place.
   9. Products that have had the serial number removed, altered or illegible and no proof of purchase are provided.
   10. Operations or damage caused by unauthorized ancillary Equipment used with the product.
   11. Non-service personnel opening the product without the permission of the Company’s authorized service provider.
1. The allegations made against the answering OP are not based on supporting documents as there is no cause of action against the answering OP. It seems the Complainant is trying to shift the burden of his own mistakes on to Opposite Party. The complainant had not filed any documents which prove that the complainant visited OP No.2 regarding the present defect of the disputed Mobile set.
10. Without prejudice to the above and in addition thereto, it is submitted that the Complainant has not come to the Hon'ble Forum with clean hands. The Complainant has filed the Complaint without any just and/ or reasonable cause(s). The Complainant has intentionally concealed and withheld material facts from the DF. The claim is a gross abuse of the processes of the DF. The Complainant cannot be allowed to take advantage of his own fraud/wrong/faults and shift any such burden to the Company by camouflaging the same as "a deficiency of services" on part of the answering Opposite Party. The Complaint is without any cause of action against answering Opposite Party in as much as answering Opposite Party is not guilty of any 'deficiency in services. The Complaint is false, and frivolous and is nothing but an attempt to harass and damage the name and reputation of Karbon Mobiles; extract money(s) from Karbonn Mobiles. Hence, OP 3 prayed that the present complaint rejected outrightly.

6.       on 25/08/2017, OP no.1 accordingly paid the cost and filed a reply on the same day, wherein OP No.2 took the following preliminary objections:

1. The present Complaint is a gross abuse of the process of law and has been filed by the Complainant with the sole purpose of harassing and pressurizing the answering respondent to submit to their unreasonable and mischievous demands. The present Complaint is based on false, frivolous and baseless facts solely to suit the nefarious designs of the Complainant.
2. The present Complaint is a gross abuse of the process of law and is liable to be dismissed with costs. The Complainant has approached this Hon'ble Forum with unclean hands by concealing and misrepresenting the material facts. The present Complaint is false, frivolous, misconceived and vexatious in nature and has been filed with the sole intention of harassing the answering Respondent.
3. The present Complaint is wholly misconceived as the Complainant has twisted the facts of the case to suit their convenience and has been filed by the Complainant with malafide intentions, which is neither sustainable in law nor otherwise. The present Complaint being false and frivolous is liable to be dismissed in pre-emption.
4. The Complainant except for making oral averments has failed to show cogent proof against OP No.3. Invoice Bill No. 860, issued clearly mentioned at the bottom that in case of any malfunctioning the shopkeeper shall not be held liable for it, and the sole liability shall be that of a manufacturing company. It has been further informed in the invoice that the customer should note the manufacturing companies number and should contact the same in case of any defect or malfunctioning
5. The Complainant has no case against OP No.1, and therefore the present complaint is liable to be dismissed qua the Answering Respondent in limine. It is apt to state that any grievance of the Complainant can only be redressed by the Manufacturing Company i.e. Respondent No. 2 & 3 and therefore no cause of action has arisen against the Answering Respondent.
6. The Answering Respondent had made it clear at the time of purchase of the mobile set that the Answering Respondent, shall have no liability and shall not be obligated to make the handset of the Complainant right or pay any damages, in case the same malfunctions or has any defect. The Complainant has not raised any allegation against OP No. 1, therefore confirming that the present complaint qua the Answering Respondent is nothing but an afterthought, and has been filed only to unjustly enrich the Complainant.
7. It is apparent on record, that no deficiency has occurred on part of the answering Respondent, therefore confirming that the present complaint is nothing but a means to malign the reputation of the Answering Respondent. Therefore OP No.1 is not liable to make good any of the deficiencies that have occurred due to the fault of the Manufacturing Company or the Service Centre.
8. The OP No 1 is only a seller of goods, who purchases the goods from the Companies and sells the same to the customer, therefore confirming that in case of any defect or malfunctioning of the product, the customer is required to approach the Company itself, and it is the whole and sole responsibility of the Company to redress the grievance of the customer. The invoice issued by OP No.1, has clearly mentioned at the foot that it shall not be liable for any defects or malfunctioning of the product.
9. It is most respectfully and humbly prayed that this Hon'ble Forum may be pleased to dismiss the present complaint qua the Answering Respondent with cost.

7. That a rejoinder was submitted by the complainant to the reply of both OP No. 3 & OP No.1 on 12/12/2017 in rebuttal to the defence taken by both ops.
   1. It is further denied that the handset of the complainant was repaired by the service of O.P. no.3 on the same day and duly informed the complainant to collect the repaired mobile handset. It is further denied that the complainant refused to collect the same and demanded a new handset. The mobile phone of the complainant was not repaired by the service centre of O.P. no.3 despite the repeated request of the complainant for a period of more than 140 days. It is further submitted that the service centre of the O.P. no.3 is taking delaying tactics on one pretext or the others and harassing the complainant’s assurances.
   2. It is further denied that the handset of the complainant was repaired by the service centre of O.P. no.3 on the same day and duly informed the complainant to collect the repaired mobile handset. It is further denied that the complainant refused to collect the same and demanded a new handset. It is further denied that it is possible that the problem occurred due to mishandling by the complainant. It is further denied that the present complaint is based on a false and fabricated story against the O.P. no.3. It is submitted that the mobile phone of the complainant was not repaired by the service centre of the O.P. no.3 despite the repeated request of the complainant for a period of more than 140 days. It is further submitted that the service centre of the O.P. no.3 is taking delaying tactics on one pretext or the others and harassing the complainant so many times by giving false assurances.
   3. It is submitted that the mobile phone of the complainant was not repaired by the service centre of O.P. no.3 despite the repeated request of the complainant for a period of more than 140 days. It is further submitted that the service centre of the O.P. no.3 is taking delaying tactics on one pretext or the others and harassing the complainant so many times by giving false assurances.
   4. It is further denied that the complainant is trying to shift the burden of his own mistake onto O.P. no.3. It is further denied that the complainant had not filed any documents which prove, the complainant visited the authorized service centre of O.P. no.3 regarding the defect of disputed mobile set.
   5. It is further denied that the complainant has filed the complaint without any just and/or reasonable cause.
8. The complainant has also filed his evidence by way of the affidavit affirming the facts alleged in the complaint on 26/02/2018. The complainant has filed his evidence by way of his affidavit and he has relied on the following documents:

- Copy of the bill/invoice is Exhibit CW1/1.

- Copy of the Warranty Card of the said Handset is Exhibit CW1/2.

- The Customer Receipt / Service Job Sheet no. KJASPDL082816KR 41167 is

  Exhibit EX. CW1/3.

 

9.     Thereafter OP No.3 also filed an Affidavit by way of evidence on 14/12/2018 after payment of the cost to the complainant. Thereafter the matter was adjourned for the filing of written arguments on behalf of both parties.

10.   Thereafter despite various opportunities OP No.1 did not file their evidence, hence they proceeded exparte vide order dated 28/08/2019 alongwith OP 2 which was ex-parte vide Order dated 10/03/2017.

11.   Complainant and Opposite party no. 3 filed written versions respectively.

10. Finally, oral arguments were heard on 01-11-2022. We have carefully gone through the record of the case and have heard the submissions of the complainant.
11. After going through the material placed on record very short question is involved whether the complainant is entitled to the relief as prayed in the complaint.
12. After hearing the Counsel for the parties, and, going through the evidence, and record of the case carefully.
13. The complainant submitted that it was only after about six months of purchase of the mobile handset, in question, that the complainant made a complaint, to the effect that there was a problem with the mobile handset. He further submitted that when the Service Engineer of the Opposite Party No.2 inspected the said mobile handset, it was found that there was a defect in the said mobile handset, and hence they deposited the phone in their service centre and issued a job card in this regard though it was within the warranty period, still OP no.2 did not return the said handset after getting it to repair, as per the terms and conditions of the warranty.
14. Whereas counsel for OP No.3 submitted that when the said mobile handset was brought by the complainant, to the Service Centre of Opposite Party No.2, its Engineers repaired the same, but he (complainant) instead of taking away the same, kept it with it (Opposite Party No.2). He further submitted that, as such, neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice, hence the complainant is not entitled to awarding compensation and litigation cost, as also in the alternative directing to refund the cost of the mobile handset.
15. We have given our thoughtful consideration, to the contentions, advanced by the Counsel for the Parties, and the evidence, on record, we observed that undisputedly, the mobile handset, in question, was purchased by the complainant, from Opposite Party No.1, for a sum of Rs.6,200/-, vide bill Annexure C-1 dated 05.01.2016. Annexure C-3 is the job sheet. It is evident, from this document that on 17.08.2016, the mobile handset was also taken to Opposite Party No.2, and the problem therein was attended. It is further evident, from Annexure C-3, that under the heading "Customer Complaint" it was recorded as "Charging problem”, So, when the mobile handset was taken to the Opposite Party 2, and job sheet Annexure C-3 dated 17.08.2016 was generated, it was still within the warranty period. No doubt, the complainant asked for repair of the mobile handset, yet that did not mean that the same was not suffering from the aforesaid defects. The mobile handset, as is evident, from Annexure C-3 was handed over by Complainant to OP 2 on 17.08.2016, which according to the complainant, as is evident, from the averments contained in the complaint, duly supported by his affidavit, by way of evidence, was not repaired till the date of filing of complaint. It was the definite case of the complainant that he visited Opposite Party No.2, time and again on various dates to take back the mobile handset, which was handed over to it, on 17.08.2016, but it was not returned to him. This averment made by the complainant, in the complainant, was duly supported by his affidavit, by way of evidence. No cogent and convincing rebuttal evidence, whatsoever, was produced by the Opposite Party 2, to the effect, that any effort was made by them to repair the mobile handset, in question, and intimation was given to the complainant, to collect the same or whether the handset was returned at all to Complainant by OP 2. Under these circumstances, by not repairing or returning mobile handset, in question, within a reasonable period, though still it was under warranty period, the Opposite Parties were not only deficient, in rendering service, but also indulged in unfair trade practice.

 

16. The next question, that falls for consideration, is, whether, any intimation was given to the complainant, by the Opposite Parties, through a notice that the mobile handset was repaired and made fully functional and the same be collected. It was for the Opposite Parties to produce the documentary evidence, in that regard, in the District Forum, but they failed to do so, though they had been given sufficient opportunity, in that regard. No doubt, alongwith the reply, no documents have been placed, on the record, showing that an intimation, was given to the complainant, for collecting the said mobile handset. Under these circumstances, since the documents had not been placed alongwith the reply are ruled out of consideration, to prove that any intimation was given to the complainant, for collection of the said mobile handset, as the same had allegedly been repaired.

 

17. The next question, that falls for consideration, is, whether, compensation as also the litigation cost may also be awarded or not. It may be stated here, that the complainant purchased the mobile handset, with a view to properly use the same, so as to have communication with his relatives and friends, at his convenience. When the mobile handset became defective and handed over to Opposite Party No.2 on 17.08.2016, for repairs, by not returning the same till the date of filing the complaint, a tremendous mental agony and physical harassment was caused to the complainant. Not only this, in the absence of mobile handset, it was not possible for the complainant, to connect with people. Compensation is required to be granted, keeping in view various factors.   

 

18. In our opinion, a person purchases a mobile handset, with a view to using the same, so that she/he could communicate with her/his relations, friends, and other persons acquainted with her/him, frequently. The mobile handset is the most important mode of communication in today’s times.
19. In the instant case, the complainant was supplied with a defective mobile set which stopped nearby 07 months of purchase.

 

20. It is a case of unfair trade practice and deficiency in service where the opposite parties are supplying defective products again and again and also refused to return the amount received.

 

21. The testimony of Complainant has gone unrebutted and unchallenged against Opposite party No.2. The complainant has proved on record the relevant documents in support of its case.

 

22. There is nothing on record to disbelieve the sworn testimony of the Complainant or the claim of the complainant. The complaint of the complainant is within the time limit since the opposite party vide its letter dated 17.08.2016 had made the complaint with regard to the defects in the said mobile in question from the complainant and also informed that OP no.2 & 3 did not provide service for removal of defects because of the fault of OP no.2. Therefore, considering the totality of the facts and circumstances and because of the unchallenged, uncontroverted and unrebutted testimony of Complainant and the documents proved on record. The complainant is entitled to a refund of the cost of the mobile; Hence, we direct the op to refund the cost of the mobile i.e., Rs 6,200/-.

 

23. In view of the above discussion, the present complaint deserves to be allowed against OP No.2 & 3 jointly and severally and the same is accordingly allowed. The OP No.2 & 3are directed as under:

[i] To refund Rs 6,200/- (Rupees Six Thousand Two Hundred only) to the complainant.

[ii] To pay Rs.5,000/- as compensation for mental agony & physical harassment suffered by the complainant and his family members;

[iii] To pay Rs.3,000/- as costs of litigation.

24. Let the order be complied with by OPs within 30 days from the date of receipt of the copy of this order.
25. Let a copy of this order be sent to each party free of cost after receiving the application for the certified copy as per the direction received from the Hon’ble State Commission.
26. File be consigned to record room. Announced on 07 /11/2022.

 

 

(Richa Jindal)         Member

(Anil Kumar Koushal)               Member

(Sonica Mehrotra)                         President