Haryana

Yamunanagar

CC/1077/2012

Prem Parkash S/o Hari Shankar - Complainant(s)

Versus

Luthra General Store - Opp.Party(s)

Ramesh Kumar

11 Aug 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                    Complaint No.  1077 of 2012.

                                                                                    Date of institution: 4.10.2012.

                                                                                    Date of decision: 11.8.2015

Prem Parkash son of Sh. Hari Shankar resident of Water Works Supply, Tejli Jagadhri, District Yamuna Nagar. 

 

                                                                                                                                        …Complainant.

                                                       Versus

 

1. Luthra General Store, Opp. Town Hall, Jagadhri Road, Yamuna Nagar through its Proprietor.   

2. Spice Mobility Ltd. Authorized Service Centre, Sidhi Telecom, Shop room No. 59C, Yamuna Nagar.  

3. Spice Global Knowledge Park, 19(A) & 19(B) 4^th Floor, Sector-125, NOIDA (U.P.) 201301. 

                                                                                                                                        …Opposite parties.

                        Complaint under section 12 of            

                        the Consumer Protection Act.

 

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present:  Sh. Ramesh Kumar, Advocate, counsel for complainant.

               Sh. Akshay Sharma, Advocate, counsel for OP No.1.

               OP No.2 already ex-parte.

               Sh. Rajan Bhatia, Advocate, counsel for OP No.3.     

             

 

ORDER

 

1.                     The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act 1986 praying therein that respondents ( hereinafter referred as OPs) be directed to replace the mobile Spice M-5180 against new one or to refund the price of Rs. 1850/- alongwith interest and further be directed to pay Rs. 50,000/- as compensation for mental agony, harassment, economic loss and also to pay Rs. 3100/- towards cost of proceedings.               

2.                     Brief facts of the present complaint as alleged by the complainant are that complainant purchased one Mobile set of Spice M-5180 bearing IMEI No. 911122757275540  from OP No.1 for a sum of Rs. 1850/- vide invoice/bill No. 29404 dated 5.1.2012. The OP No.1 is dealer of spice Mobile and OP No.3 is manufacturer of said. Mobile hand set whereas the OP No.2 is the authorized service centre of spice mobiles. In the last week of August, 2012, the mobile set in question developed defect in as much all the key pad buttons of the mobile stopped working and the complainant was unable to dial any number nor he was able to receive any call. The mobile set became totally dead. On 3.9.2012 the complainant went to Op No.2 service centre and told about the problem, whereupon the complainant was told that his mobile hand set will have to be sent to Mohali for necessary repairs and the handset was kept by OP No.2 and request voucher was issued to him. The complainant was told to collect the mobile set after a week and after one week he went to OP No.2 but he again asked to come after 2-3 days  and in this manner he was called 4-5 times and every time he was given the same reply. On 24.9.2012 the complainant again went to the OP No.2 but again he was told that his mobile hand set has not been received after repairs till now. The complainant had purchased the hand set on payment of huge price thereof but inspite of this the complainant could not use it for making calls and enjoy the mobile phone and he has to go PCO for doing calls. The OPs are guilty of deficient and negligence services to the complainant and he has suffered a lot of mental agony, harassment as well as economic loss. Hence this complaint. 

3.                     Upon notice, OPs No. 1 & 3 appeared and filed their written statement separately but OP No.2 appeared through Arvinder Singh Service Engineer on 15.1.2013 and thereafter failed to appear hence, he was proceeded against ex-parte vide order dated 21.6.2013.

4.                     OP No.1 filed written statement by taking some preliminary objections such as complaint is not maintainable, no cause of action, complainant has not come to this Forum with clean hands and on merit it is submitted that at the time of selling the said mobile to th complainant, it was told that the warranty is provided by the manufacturing company and in case of any defect the OP No.2 will be responsible for all the defect and it is the OP No.2 who can remove the defect of the mobile in question. The OP No.1 never assured the complainant to purchase the said mobile phone. The complainant purchased the said mobile phone after knowing all the features of the mobile phone. The complainant never visited the OP No.1 with any complaint. As such there is no deficiency in service on the part of OP No.1 and the complainant is not entitled to get replace the said mobile phone and prayed for dismissal of complaint.

5.                     OP No.3 filed written statement by taking some preliminary objections such as no territorial jurisdiction to entertain and try the present complaint and on merit it is submitted that Spice Mobiles Ltd. is a part of Spice Corp. as billion multi faceted group  with an exclusive telecom eco system in with an exclusion telecom eco-system in India. Spice mobiles ltd. has heralded a new chapter in the history of Indian Mobile telephony by launching the first over dual mode phones. The OP No.3 is pioneer in the field of such type of dual mode phones. There is no complaint of like sort from any corner of country. Spice Mobile is the proud winner of Golden Peacock Award for innovative product/services for the year 2007.  It is further submitted that to the best of knowledge of the OP No.3, the complainant never entrusted his spice mobile either to the opposite party No.1 because no job card ever issued in this regard. Now, the complainant by means of present complaint wants to have new spice mobile in lieu of this mobile phone set, free of cost, purely by putting false and frivolous allegations against the OP No.3. The complainant has not suffered any mental agony and physical harassment and financial loss due to OP No.3 and prayed for dismissal of complaint.

6.                     To prove the case, counsel for the complainant tendered Affidavit of complainant as Annexure CX and documents such as Photo copy of Invoice No. 29404 dated 5.1.2012 as Annexure C-1, Photo copy of service request/ Job sheet as Annexure C-2 and closed the evidence on behalf of complainant.

7.                     On the other hand, counsel for the OP No.3 did not tender any document on behalf of OP No.3 and closed the evidence on behalf of OP No.3 whereas counsel for OP No.1 failed to file any evidence despite last opportunity, hence the evidence of OP No.1 was closed by court order on 25.2.2015.

8.                     During the course of argument on dated 16.6.2015 counsel for OP No.3 moved an application dated 28.5.2015 alongwith Job Card for dismissal of complaint on the ground that the complainant has not disclosed that he has received new set on 11.10.2012 from the respondent and suppressed the true and material facts from this Forum.

9.                     Reply of the application was filed by complainant alleging therein that the application is wrong and hence, denied. It is also wrong to allege that any new mobile was given to him at any time. Even the old mobile handed over to the Op was not returned to him. The alleged service request letter has been forged and fabricated by the OP and moreover this letter does not bear the signatures of complainant. The signature of the customer is necessary either new mobile is given or old mobile is returned to him. The OP has trying to mislead this Forum and play fraud with it and prayed for dismissal of application.

10.                   We have heard the learned counsel for the complainant as well as learned counsel for OPs No.1 & 3 and have gone through the pleadings as well as documents placed on the file.

11.                   We will dispose off the application dated 28.5.2015 filed on 16.6.2015 by the OP No.3 as well as complaint vide this order.

12.                   From the perusal of Annexure C-1,  it is clear that the complainant had purchased mobile set from the OP No.1 on 5.1.2012 by paying a sum of Rs. 1850/-. The complainant has alleged that the mobile set in question became defective and he deposited the said mobile set with OP No.2  whereas the OP No.3 took the plea that the complainant never entrusted his spice mobile to the opposite party No.1 because no job card was ever issued in this regard and now the complainant by means of present complaint wants to have new spice mobile in lieu of this mobile phone set, free of costs purely by putting false and frivolous allegations against the OP No.3 but this contention of the OP No.3 is not tenable to our mind because on the one side the OP No.3 has stated that the complainant never entrusted his spice mobile to the opposite party No.1 because no job card was ever issued in this regard but on the other side the OP No.3 stated that the mobile set of the complainant has been replaced with new mobile set bearing IMEI No. 911141801528001 as mentioned in the job card dated 11.10.2012 issued against job card dated 3.9.2012. As no signature of the complainant has been obtained on the job card/ delivery sheet dated 11/10/2012, hence without obtaining signature of the complainant, it cannot be presumed that  mobile set has been returned/replaced to the complainant by the OP No.3. From the perusal of Annexure C-2 (Job Sheet), it is clear that the mobile set of the complainant was dead and the same was deposited with the OP No.2 but the OPs No.2 &3 neither repaired it nor replaced with new one.   As the mobile set of complainant was within warranty period, having no other alternative, he has to file the present complaint before this Forum for the redressal of his grievances. As such, the application dated 28.5.2015 filed by counsel for OP No.3, has no merit.

13                    In view of the facts narrated above, we are of the confirmed view that Ops No.2 & 3 have failed to provide proper services to the complainant qua the mobile in question and thus they are guilty of providing deficient services to the complainant. Hence, in these circumstances, we have no option except to allow the present complaint and thus we direct the Ops  No.2 & 3 to replace the defective mobile in question with a new one of the same model & having same costs and if the same model is not available, then to refund the cost of mobile in question to the complainant within 30 days from the date of decision failing which complainant would be entitled to get interest at the rate of 7% per annum from the date of decision till its realization. The OPs No.2 & 3 are further directed to pay Rs. 1000/- as litigation expenses. The complaint is partly allowed in above terms.  Copies of this order be sent to parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 11.8.2015.

                                                                                    (ASHOK KUMAR GARG)

                                                                                    PRESIDENT,

                                                                                     

 

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.