BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.167 of 2017

Date of Instt. 25.05.2017

Date of Decision: 26.12.2017

Harpal Singh aged 53 years Son of Sh.Ram Sarup resident of House No.1, Manjit Nagar, Basti Sheikh, Jalandhar.

..........Complainant

Versus

1. Mahendru Telecom, Office No.2, Second Floor, Monika Tower, Near Milap Chowk, Chahar Bagh, Central Town, Jalandhar through its Manager.

2. Motorola Excellence Centre, 415/2, Mehrauli Gurgaon Road, Sector 14, Gurgaon (Haryana) (Head Office).

3. Vision Way Communication Authorised Service Centre, Ground Floor, Jabble Tower Beside Grand Mall BMC Chowk, Jalandhar through its Authorised Manager/Incharge.

….… Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Parminder Sharma (Presiding Member)

Smt.Harvimal Dogra, (Member)

Present: Sh.J.S.Saini, Advocate Counsel for the Complainant.

Sh. Vishal Chaudhary, Advocate Counsel for the OP No.1

Opposite Party No.2 & 3 exparte

Order

Parminder Sharma (Presiding Member)

1. The Complainant has filed the present complaint Under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties on the allegations of the deficiency in service and unfair trade practice with the prayer that the Opposite Parties may be directed to pay an amount of Rs.9999/- i.e. amount of the phone and Rs.50000/- to be paid to the complainant for mental agony and harassment and Rs.10,000/- as litigation expenses.

2. The case of the complainant in the present complaint is that the Complainant purchased a new Motorola Mobile Phone Model No.Moto G Turbo Edition XT1557 (16GB) Black from the Opposite Party No.2 through online services vide retail Invoice No.F0EBC00217-00001189 dated 07-12-2016 as such, he is a consumer under the provisions of the Consumer Protection Act. That from the very beginning the above said mobile was not working properly as there was listening fault in the mobile and there was also fault in the mobile phone in feature of Ok google. That the Complainant reported the matter regarding fault in the phone to the employees of service station before the opposite party No.1 approximately five times vide dated 04-02-2017, 10-03-2017, 23-03-2017, 20-04-2017, 26-04-2017, but Opposite Party No.1 failed to repair the said mobile phone and also did not issue any job sheet to the complainant. That the complainant also made telephonic calls to confirm the repair of mobile so many times from the opposite parties. The complainant also issued a legal notice to the opposite parties regarding the above said facts vide dated 19-05-2017. That later on the facts came to the knowledge of the complainant that opposite party No.1 is not the authorized service station of opposite party No.2, then the complainant again reported the matter regarding the above said fault before the opposite party No.3, but they refused to repair the said mobile phone. On the said act and conduct of the opposite party No.3, the complainant issued a legal notice to the opposite party No.3 vide dated 17-07-2017 and on receiving the said legal notice, the opposite party No.3 promised to repair the above said mobile phone and after taking mobile phone in their custody, they have issued a job sheet vide dated 02-08-2017 vide Invoice No.2136 with remarks Job warranty(No). It is to be mentioned here that since then the mobile phone is in the custody of opposite party No.3, but neither they have repaired the above said phone nor they have returned the phone to the complainant. That due to deficiency in service on the part of opposite parties, the complainant suffered mental tension, harassment as well as agony. That the mobile was purchased by the complainant through online services at Jalandhar and the delivery was also effected at the house of the complainant at Jalandhar. So this Hon'ble Forum has got the jurisdiction to entertain, try and decide present complaint. This complaint has been filed due to deficiency in service and unfair trade practice on the part of the opposite parties.

3. After formal admission of the complaint, notice of the complaint was given to the opposite parties and accordingly, the opposite party No.1 appeared through the counsel and filed written statement whereby contested the complaint by stating that the complaint is a gross abuse of process of law and has been filed by the complainant with the sole purpose of harassing and pressurizing the answering opposite party to submit the unreasonable and mischievous demands of the complainant. Further the Opposite Party No.1 has taken preliminary objections stating that the present complaint is not maintainable in the present forum, as the same is based on wrong, false and frivolous facts. That the complainant is not entitled to any claim or to get any relief claimed therein. The complaint in reply is not maintainable in law or on the true facts and the same is liable to be dismissed. Moreover, the complainant has failed to disclose all the facts before this Hon'ble Forum. The Complainant even then visited the opposite party No.1 many times, but the opposite party No.1 told the complainant that the answering opposite party No.1 was not authorised service station of opposite party No.2 i.e. Motorola Company and suggested the complainant to visit the authorized service centre for the repair of the handset. On merits all the points taken in preliminary objections were reiterated and allegations made in the complaint are categorically denied and lastly prayed for dismissal of the complaint with costs in the interest of the justice, equity and fairplay.

   4. The OP No.2 did not appear and hence OP No.2 was proceeded against exparte. The OP No.3 appeared through Sh.Arun Kumar Thakur, Central Manager on 28.08.2017, but he did not file written statement So the Opposite Party No.3 was also proceeded against exparte on 29.09.2017.

   5. The complainant and Opposite Party No.1 were granted opportunity to lead their respective evidence. The Complainant tendered in evidence three Affidavits Ex.CA, Ex.CB and Ex.CC along with documents Ex.C-1 Legal Notice, Ex.C-2 Original Postal Receipt, Ex.C-3 & Ex.C-4 Copy of bills regarding online purchase of mobile, Ex.C-5 to Ex.C-9 Print outs Calls History of mobile numbers, Ex.C-10 Print Out of the Receipt on back cover of mobile set, Ex.C-11 Legal Notice to OP No.3 i.e. Vision Way Communication, Ex.C-12 Original Postal Receipt, Ex.C-13 Service Job Sheet, Ex.C-14 & Ex.C-15 E-mails and Ex.C-16 Bill and closed his evidence.

   6. In order to rebut the evidence of the complainant, Counsel for the Opposite Party No.1 tendered into evidence Affidavit Ex.OP1/A and closed the evidence on behalf of the Opposite Party No.1.

   7. We have heard the contentions put forward by Ld. Counsel for the Complainant as well as Ld. Counsel for the OP No.1. We have also examined the entire material on record and given a thoughtful consideration to the arguments advanced before us by Ld. Counsel for the Complainant as well as OP No.1.

   8. The main contention of the complainant is that he has purchased a new Motorola phone worth Rs.9999/- on 07-12-2016. From the very beginning, the Motorola phone did not work properly as there was listening fault as well as there was a problem in the feature of Ok google. The Complainant made five times complaint before opposite party No.1 and Opposite Party No.1 failed to repair the mobile phone properly and did not issue any job sheet. The complainant also made number of telephonic calls to confirm the repair of the mobile phone from the opposite parties. Photocopies of the Call details are Ex.C-5 to Ex.C-9. The Complainant also issued a legal notice dated 19.05.2017 which is Ex.C-1. Later the Complainant came to know that the Opposite Party No.1 is not authorised service centre of Opposite Party No.2, so the complainant reported the matter to Opposite Party No.3. Legal Notice dated 17-07-2017 was issued to Opposite Party No.3 which is Ex.C-11. The Opposite Party No.3 promised to repair the mobile set and issued a job sheet dated 02.08.2017 which is Ex.C-13. The problem shown in the job sheet was ear speaker problem. During the course of the arguments, the complainant has stated that the Opposite Party No.3 has returned the mobile phone to the Complainant un-repaired and same defect still exist in the mobile phone.

9 We find force in the contention of the complainant and find deficiency in service and negligence on the part of Opposite Parties. The opposite parties failed to give proper service to the complainant. As such, Opposite Parties have failed to repair the mobile phone or make it functional inspite of numerous complaint made by the complainant. So the complainant is entitled to the compensation on account of harassment and mental agony Moreover, the Opposite Party No.1 has appeared, but Opposite Party No.2 & 3 failed to come forward and the evidence led by the complainant has remained unrebutted and unassailed by them. So either one way or the other all the Opposite Parties have been playing tactics with the complainant and intentionally caused harassment to the complainant. Even the manufacturing company damn bothered to rectify the defect and unable to redress the grievance of the complainant. This is nothing-else, but deficiency of service and unfair trade practice. Hence the complainant has been able to establish and prove the allegations made in the complaint.

10. In light of the above detailed discussion, the complaint partly succeeds and same is hereby partly allowed with cost in favour of the complainant and against the Opposite Parties. Therefore, the Opposite Party No.1 to 3 are jointly and severally liable to refund the consideration amount of Rs.9999/- along with interest @ 9% per annum from the date of filing of this complaint till its realization and further Opposite Parties are directed to pay compensation to the complainant to the tune of Rs.4000/- and litigation expenses of Rs.3000/-. The entire compliance of the order be made within 30 days from the date of receipt of copy of the order. The complaint could not be decided within stipulated time frame due to rush of work. Copies of the order be supplied to the parties, free of costs as per rules. File be indexed and consigned to the record room.

Dated (Harvimal Dogra) (Parminder Sharma)

26.12.2017 Member Presiding Member