DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.332 of 18-08-2015

Decided on 29-12-2015

Inderpal Singh, Advocate S/o Kartar Singh R/o Sewa Singh R/o Gali Durga Mandir Wali, Goniana Mandi, Tehsil and District Bathinda.

........Complainant

Versus

1.Karbonn Mobiles # 39/13 off 7^th Main, Hal 2^nd Stage Appa Reddy Palya Indira Nagar, Bangalore-560038, through its Managing Director/Authorized Signatory.

2.Vintage Communication, Authorized Service Centre, 1^st Floor, Shop No.12, Shakti Complex, Bathinda, through its Manager/Partner/Proprietor.

3.M/s Smart Service, 1^st Floor, Ajit Road, Street No.5, Near Dr.Kalra Hospital, Bathinda, through its Manager/Partner/Proprietor.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh.M.P Singh Pahwa, President.

Sh.Jarnail Singh, Member.

Present:-

For the Complainant: Sh.Ankush Kumar Singla, counsel for the complainant.

For Opposite parties: Sh.N.S Narula, counsel for opposite party Nos.1 & 3.

Opposite party No.2 ex-parte.

ORDER

M. P. Singh Pahwa, President

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

2. Briefly stated, the case of the complainant is that he had filed complaint U/s 12 of 'Act', which was registered as Consumer Complaint No.325 of 29.5.2014 against opposite parties. This complaint was decided by the Forum vide order dated 5.8.2014. The complaint was accepted with cost and compensation against opposite party Nos.2 and 3 and dismissed against opposite party No.1 namely Prince Telecom. The operative part of that order is reproduced as under:-

   “Therefore in view of what has been discussed above this complaint is accepted with Rs.5000/- as cost and compensation against the opposite party Nos.2 and 3 and dismissed qua the opposite party No.1. The opposite party Nos.2 and 3 are directed to replace the mobile handset in question with new one with the same specification, model and brand with fresh warranty to the complainant. The mobile handset in question is already lying with the opposite party No.2 as such no direction can be given to the complainant in this regard. The compliance of the order be done within 45 days from the date of receipt of the copy of this order.”

   As opposite party Nos.2 and 3 failed to comply with the order, the complainant had to file Execution Application U/s 27 of 'Act' on 7.10.2014. Opposite parties (Respondents) appeared through counsel and tendered cheque of Rs.5000/- on 1.12.2014 in part compliance of order. The cheque was accepted by the complainant under protest. After several adjournments for delivering the new mobile handset, respondents with a dishonest intention, to cheat the complainant submitted the mobile handset model Karbonn Titanium S5 bearing IMEI1 No.911309353284212 and IMEI2 No.911309353284220 in this Forum, which was accepted by the complainant on 19.5.2015. Execution Application was dismissed being satisfied.

3. It is alleged that when the complainant opened the box and tried to switch on the mobile handset, he found that its screen is not in order as same was vibrating. The colour of the mobile handset was found black whereas it was mentioned as white on the box. Therefore, respondents in the abovesaid execution application cheated him and delivered him defective mobile handset. The complainant contacted respondent No.2 of the earlier execution, but it told him that it has left the service centre and now opposite party No.3 is the authorized service centre of opposite party No.1. Accordingly, the complainant approached opposite party No.3 and requested it to replace/repair his mobile handset, but opposite party No.3 asked for bill. The complainant told opposite party No.3 that he has received the mobile handset by the order of this Forum with fresh warranty, but opposite party No.3 did not accept the mobile handset and asked him that it will accept the mobile handset after taking permission from the company i.e. opposite party No.1.

4. It is further alleged that the complainant again approached opposite party No.3, but it revealed that the mobile handset is out of date and it will update software in the mobile handset in question for another 10 days. He again approached opposite party No.3, but it flatly refused to replace or repair the mobile handset on the pretext that it is outdated. Opposite party No.3 also asked the complainant to contact Karbonn's Authorized Person Vicky Bathla. The complainant contacted Vicky Bathla on his mobile handset, he told him to give sometime, but thereafter he flatly refused to do anything. He has also written letter to opposite parties on 10.7.2015 with the request to replace the mobile handset with new one, but no reply has been received from them.

   On this backdrop of facts, the complainant has filed this complaint with the prayer to direct opposite parties to refund him price of mobile handset i.e. Rs.12,000/- with interest @ 12% per annum from the date of payment; Rs.25,000/- as compensation on account of mental tension etc. and Rs.11,000/- as litigation expenses. Hence, this complaint.

5. Notice was issued to opposite parties. Previously, none appeared on behalf of opposite parties. Hence, ex-parte proceedings were taken against them.

6. The complainant was afforded opportunity to produce evidence.

7. In support of his version, the complainant tendered into evidence his own affidavit dated 5.10.2015, (Ex.C1); photocopy of order dated 5.8.2014, (Ex.C2); photocopy of bill, (Ex.C3); photocopy of order dated 19.5.2015, (Ex.C4); photocopy of letter, (Ex.C5); photocopies of postal receipts, (Ex.C6 to Ex.C8); photocopy of order dated 3.8.2015, (Ex.C9) and closed the evidence.

8. Subsequently, opposite party Nos.1 and 3 appeared through their counsel.

9. We have heard learned counsel for the parties and gone through the file carefully.

10. Learned counsel for complainant has reiterated his averments as taken in the complaint and detailed above. It is further submitted by learned counsel for complainant that the complainant has alleged that opposite parties have cheated by giving him defective mobile handset of black colour instead of white colour. Opposite party Nos.1 and 3 have also failed to replace the mobile handset with new one or repair it. This evidence is un-rebutted. The considerable time has already passed, opposite party Nos.1 and 3 have failed to repair or replace the mobile handset. Now, the repair of the mobile handset will not serve any purpose. Opposite party Nos.1 and 3 should be directed to refund the price of the mobile handset and complainant should also be awarded compensation.

11. On the other hand, learned counsel for opposite party Nos.1 and 3 has submitted that the complainant has not approached before this Forum with clean hands. The mobile handset was given to the complainant on 19.5.2015. The complainant has filed this complaint on 18.8.2015. Even earlier execution application U/s 27 of 'Act' was filed on 24.7.2015. In case, there was any defect as now alleged by the complainant, he was to file execution or complaint immediately thereafter. These facts prove that there is no manufacturing defect in the mobile handset. Even otherwise no evidence is brought on record to prove any manufacturing defect in the mobile handset. Therefore, the complainant is not entitled to refund of price of mobile handset in question. He was also provided brand new mobile handset in compliance of the order dated 5.8.2014 passed by this Forum.

12. We have given careful consideration to these submissions.

13. From the contents of complaint, it is made out that as per case of the complainant, he requested opposite party Nos.1 and 3 to repair/replace the mobile handset in question, but they have failed to repair/replace it although for want of bill. There is nothing on record to prove that there is any manufacturing defect in the mobile handset entitling the complainant for refund of its price. However, as per the complainant, there is some defects in the mobile handset. Opposite party Nos.1 and 3 are duty bound to repair the mobile handset as it was delivered to the complainant with fresh warranty on 19.5.2015. Therefore, it is still within the warranty.

14. For the reasons recorded above, the complaint is partly accepted with Rs.1000/- as cost and compensation against opposite party No.1 and dismissed qua opposite party Nos.2 and 3. Opposite party No.1 is directed to effect repair of the mobile handset in question as per terms and conditions of warranty without insisting the complainant for bill.

15. The compliance of this order be made within 30 days from the date of receipt of copy of this order.

16. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    29-12-2015

    (M.P Singh Pahwa )

    President

     

     

    (Jarnail Singh)

    Member