State Consumer Disputes Redressal Commission
Andaman & Nicobar Islands
Port Blair
Present : Justice P.N. Sinha, President
Shri Bimal Behari Chakravarty, Member
Appeal No. 7 of 2009
Shri Sona Sarkar,S/o Late Satin Sarkar , R/o Mazar Pahar
Port Blair
………Appellant
vs
Proprietor / Manager, M/s Shopping Singapore
Aberdeen Bazar, (Near Ganesh Temple) Port Blair
..…….Respondent
JUDGEMENT
Dated: 25.02.2010
This appeal has been preferred by the appellant being aggrieved by and dissatisfied with the order of the District Consumer Disputes Redressal Forum, Andaman District, Port Blair (hereinafter called the District Forum) dated 29.06.09 in C.D.Case No.50 of 2007 as by the said order the District Forum dismissed his complaint.
Facts of the case, in short, is that the appellant purchased one E-250 Samsung brand mobile phone from the shop of the respondent on 29.03.07 at a price of Rs.7700/- with oral warranty of one year. The said mobile set had developed defects within a few days of its purchase as display screen became fade and figures appearing there on became illegible. He thereafter handed over mobile set to the respondent on 04.07.07 for repair at free of cost since the defect had appeared within the warranty period. The respondent was not willing to give free service and he had to pay Rs.200/- as advance on 04.07.07 as repair charges. On 04.10.07 he went to the shop of respondent for taking back the mobile set but, was shocked to see that the respondent had demanded a hefty sum of Rs.2000/- as total repair costs. He did not agree to pay the amount and since then he was harassed by the respondent. He sent a demand notice dated 14.11.07 through his lawyer which was received by the respondent on 18.11.07. Taking advantage of his ignorance and illiteracy, the respondent did not hand over the warranty card to him and, instead of issuing cash memo issued estimate slip for the price of the mobile. On 04.07.07 the respondent issued another estimate slip over which he later on demanded Rs. 2000/- as repair charges. In spite of demand notice the respondent did not meet the demands mentioned by him in the notice. Accordingly, the complaint was lodged before the District Forum claiming refund of Rs.7900/- with interest there on and compensation of Rs.5000/- for harassment, litigation cost of Rs.5000/- and other reliefs.
The respondent contested the complaint by filing written objection wherein he denied the averments made in the complaint and inter-alia contended that, the mobile set was sold to the appellant for a price of Rs.7700/- on 29.03.07 giving a discount of Rs.200/- and there was no warranty for that said mobile set. The appellant used the mobile for nearly four months and inadvertently had thrown the mobile in water as a result of which it became defective. The appellant came to the shop on 04.07.07 and gave the said set for repair and at that time the appellant gave Rs.200/- as advance of the repair charges and he was told that total repair cost will be intimated later on depending on report of the mechanic. Thereafter, the appellant never visited his shop and sent a legal notice through his advocate dated 14.11.07. He sent reply of the said legal notice through his advocate dated 27.11.07 and it was duly received by the appellant. The appellant did not visit his shop to take back the mobile nor made payment for the repairing charges. The complaint was not maintainable since Sumsung Company, the manufacturer was not made a party and he was only the selling agent of the said company. The complaint was accordingly not maintainable and should be dismissed.
The District Forum on the basis of oral and documentary evidence adduced by both the parties by the impugned order dated 29.06.09 dismissed the complaint filed by the appellant. During hearing before the District Forum the respondent produced the repaired mobile set and made clear before the Forum that he would not take any repair charge from the appellant. The District Forum accordingly, directed that the mobile set should be received back by the appellant within one month from the date of order failing which it would be handed over to the respondent for delivery to the appellant.
After hearing the submission of the Ld.Advocate for the respondent and perusing the evidence and materials on record carefully as well as complaint and memo of appeal, we find that the main intention of the appellant was that the respondent should replace the mobile phone with a new set. We have carefully perused the oral and documentary evidence adduced by the parties and we find that price of the said Samsung mobile set was Rs.7900/- and giving a discount of Rs.200/- the respondent sold the said set to the appellant at a price of Rs.7700/- on 29.03.07. Though cash memo in fact was not issued, the estimate slip issued by the respondent (exhibit-3) from his shop dated 29.03.07 establishes purchase by appellant. Exhibit-4, another estimate slip is dated 04.07.07 and it reveals that the said mobile set was received in the shop of respondent with note ‘display’ and the service bill dated 09.07.07 (Exhibit-1) issued by respondent reveals that he charged Rs.2000/- as total repair cost. There is a note on exhibit-1 that Rs.200/- was paid by the appellant as advance. Exhibit-2 is reply of the demand notice issued by the appellant to respondent. Exhibit-3 which was treated as cash memo does not reveal mention of warranty for the said mobile set.
The story of oral warranty introduced in complaint was denied by respondent in the written objection and it was not proved from oral evidence that there was any oral warranty. The oral warranty is neither believable nor acceptable since there is no legal status of such oral warranty. There may be an understanding between a seller and a purchaser regarding repair but, theory of oral warranty is not acceptable. Warranty, if any, must be in writing and period of warranty must be mentioned either over the cash memo or by issuing a separate warranty card with date and seal of the shop. At the same time the story introduced by respondent that the appellant disclosed to him that inadvertently he dropped the mobile set in water for which it became defective is not believable since there is no proper evidence to prove it. From the facts and circumstances of the case as well as from the evidence, we find that the mobile set purchased by appellant on 29.03.07 became defective and he handed over the said set to the respondent on 04.07.07 for repair. It is not a case that within a few days of purchase the mobile set became defective. The dates of purchase and handing over the said mobile for repair makes it clear that the appellant had used the said mobile for over three months. The mobile set was definitely costly in 2007 and there ought to have been warranty on it. It might be that warranty was not given as some deduction was given to the appellant or, that to avoid sales tax, vat etc. the appellant avoided cash memo. However, there is no evidence to that effect and accordingly, we on our own cannot come to a conclusion as to why warranty was not given. Be that as it may, principles of natural justice demands that in a matter of such costly mobile set which became defective within three months of purchase, the respondent should have repaired it free of cost though cause of not giving warranty remained unknown.
New mobile set by replacing the one purchased by appellant is not permissible in this case. Refund of money or replacement of a new mobile set is permissible, if it was established from evidence that within a few days of purchase, the said mobile set became so defective that the defects were beyond repair or, that parts of the mobile set were not available in the market for repair. From evidence and materials on record rather it has been established that the appellant had used the said mobile set for over three months, and thereafter, it became defective. From evidence of the parties as well as circumstances appearing from the judgment and record of the District Forum, it is clear that the mobile set was repaired. Before the District forum the said repaired set was tested and it was found OK i.e all right. As the mobile set was repaired question of replacing the mobile by a new set is not permissible and the appellant is not entitled to any such relief.
During evidence question was put to the appellant as to whether he is ready to take back the mobile set, if it is returned to him without payment of any repair charge and the appellant unhesitatingly answered before the District Forum that “I have no desire to take the said mobile any more from the shop”. Though the District Forum directed the appellant to take back the mobile the appellant did not do so. It is thus clear that the only intention of the appellant is to have one new mobile set in place of his earlier mobile set which has now been repaired. The respondent before the District Forum made it clear by stating that he is not demanding any repair charge and, in-spite of such submission and such disclosure the appellant refused to take back the mobile. The District Forum directed return of the mobile to the appellant but, did not pass any order for returning or refunding Rs.200/- which was taken by the respondent from appellant as advance for repair charges. Considering the evidence and materials on record we do not find any infirmity or illegality in the order of the District Forum except regarding silence of the District Forum in respect of the advance which was taken by the respondent earlier for repair charges. In our opinion the said Rs.200/- should be returned to the appellant by the respondent as the respondent before the District Forum disclosed his intention not to take any repair charges.
In view of discussion made above the appellant is not entitled to any new mobile set. The appellant is not entitled to claim any amount either as compensation for mental agony or harassment. He is also not entitled to any litigation cost, cost of demand notice or any other relief except refund of Rs.200/- paid by him as advance for repair of mobile. Accordingly, the appeal is allowed in part and the order of the District Forum is modified to the manner and extent indicated above.
The respondent shall refund Rs.200/- which was taken by him on 04.07.07 as advance for repair of mobile set and he shall deposit this amount of Rs.200/- before the District Forum within one month from the date of this order. The other directions passed by the District Forum regarding the return of mobile set to the appellant is affirmed and the parties would act accordingly and the appellant is directed to take back the mobile set within one month from the date of this order failing which the District Forum would act according to its direction passed earlier on 29.06.09 in its judgment and order. The appeal is accordingly disposed of in the manner and extent as indicated above.
We make no order as to costs of this appeal.
Send back the records of the C.D.Case No.50 of 2007 to the District Consumer Redressal Dispute Forum, Port Blair along with a copy of this judgement for information and necessary action.
Copy of the judgement passed by this commission be handed over to the Ld. Advocates for the parties free of cost on proper receipt.
