Orissa

Cuttak

CC/120/2019

Rashmita R Bhatta - Complainant(s)

Versus

Manish Telecom Shop - Opp.Party(s)

B K Sinha

07 Apr 2022

ORDER

            IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                                C.C.No.120/2019

                                Rashmita R.Bhatta,

C/o: B.K.Sinha,At:Sinha Bhawan,

Sagadiasahi,Ranihat,

P.S:Mangalabag,Dist:Cuttack.                                                        ... Complainant.

 

                                                Vrs.

      Proprietor of Manish Telecom Shop,

Near Railway Station,P.S:Malgodown,

P.O:College Square,Dist:Cuttack.... Opp. Party.

 

Present:               Sri Debasis Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:  30.09.2019

Date of Order: 07.04.2022

 

For the complainant: Mr. B.K.Sinha,Adv. & Associates.

For the O.P                 : Mr. P.K.Ray,Adv. & Associates.

 

Sri Debasish Nayak,President.

            The case record is put up today for orders.

Perused the case record and its connecting documents.

2.         The case of the complainant in short is that the complainant had purchased a mobile phone from Banki Cuttack. In the month of December,2018 the complainant had given her Samsung mobile Galaxy Duos 3 (G316HR), B No.AAIG6048812B, IMEI No.259375064172433 to the O.P. for repair at his shop name and style “Manish Telecom Shop”,Station Bazar,PO:College Square,P.S:Malgodown,Dist:Cuttack.  The agent of the O.P. namely ‘Sampati’ had collected the said mobile phone of the complainant and had disclosed that there would be a cost of Rs.200/- for repairing the said mobile.  Accordingly, the complainant had given Rs.200/- for repair of the mobile phone to the said agent.  The complainant demanded for money receipt but the agent of the O.P denied saying that there is no necessity of the money receipt.  The complainant was directed by the said ‘Sampati’, the agent of the O.P to come and collect the mobile phone on the next Sunday.  But the phone was not repaired and the complainant was returned without being given her mobile phone.  This process continued till April,2019, when the O.P repeatedly refused saying not to have received any phone from her.  The complainant was running consistently/repeatedly to the shop of the O.P for getting her mobile phone but was handed over an alternative phone for use by the complainant.  On 2^nd day of August,2019 the complainant asked for her mobile from the O.P but the O.P. had rudely asked her to come on 5^th of August,2019.  Ultimately, on 5^th of August,2019 afternoon, the O.P asked the complainant to come and receive her mobile phone.  On the next day, the complainant went to the O.P when the O.P took back the alternative mobile phone Samsung ACE but not returned her mobile phone, which was in worst condition and also not returned her money of Rs.200/- taken from her towards repairing charges.  The complainant had to bear the cost of Rs.5000/- for repairing of her mobile phone.  As per the complaint petition, the O.P wanted to settle the matter through counselling with the complainant by paying her Rs.4000/- but it had not been materialised.  As such, the complainant has prayed that there was gross deficiency in service, undue harassment and betrayal of fake committed by the O.P for which she has demanded compensation along with litigation expenses and cost of repair charges of her mobile phone in total Rs.1,00,000/-.

3.         The O.P has contested this case and has filed written version wherein the O.P has mentioned that the complainant petition is not maintainable, the complainant is not coming within the definition of consumer as defined U/S-2(1)(d) of C.P.Act,1986 as she had not paid a single pie.  The O.P admits about the complainant handing over her mobile to one of his employee in his shop but has refused to have received any money for repairing the same.  The complainant never turned down till April,2019 in order to collect her mobile phone from the shop of the O.P.  After elapse of 4 months, the particular mobile set of the complainant was not detected in the said shop for which the complainant was requested to give some time in order to find out her mobile phone in the said shop.  The O.P, to the contrary had handed over a similar set of mobile phone asking the complainant to manage with the same for a week enabling the O.P. to locate her mobile phone within the said period.  After a week the complainant came to the shop of the O.P where she handed over the mobile phone given by the O.P to her in a damaged condition.  The O.P demanded cost of the damage of his mobile phone as well as the repairing cost of the mobile phone of the complainant from the complainant but the complainant ran away without paying anything.  As such, it is prayed by the O.P that there was no deficiency in service since because the complainant had not turned up for 4 months after giving her mobile for repair.  The O.P further has averred that the claim of the complainant to have spent a sum of Rs.5000/- for repairing her mobile set is unbelievable and baseless.  The O.P admits to have approached the learned counsel for the complainant through his counsel for settling the matter.  As such it is prayed by the O.P to dismiss the complaint petition with cost.

5.         Keeping in mind the averments as made by the complainant in her petition as well as the written version of the O.P, it is felt that the following issues are required to be settled in this case by this Commission.

            a.   Whether the complaint petition as filed is maintainable?

b. Whether the complainant is a bonafide consumer as per the provisions of C.P.Act,1986?

            c. Whether the allegations raised by the complainant are true?

            d.   Whether the complainant is entitled to get the claims as prayed by her?

6.         When the O.P admits to have received the mobile phone of the complainant for repair, it is obvious that there was demand for consideration in repairing the said mobile phone of the complainant.  To this context it is the plea of the complainant that she had paid a sum of Rs.200/- in advance to the employee of the O.P but the same is denied by the O.P.  While going through the definition of the consumer as made out from the C.P.Act, it is noticed that the consideration amount either paid or promised for the service entail the complainant  in this case to be bonafide consumer undoubtedly.  When this Commission has proper jurisdiction and it is a dispute under the C.P. Act, this complaint petition as filed by the complainant is undoubtedly maintainable.  Accordingly issues No.1 & 2 are answered in the affirmative.

7.         The complainant has stated that after running frequently to the shop of the O.P., her phone was misplaced, located later but was not repaired for which she had to pay a sum of Rs.5000/- for repairing the same elsewhere.  Her claim for a sum of Rs.200/- to the employee of the O.P also lacks any evidential support.  The O.P has claimed that the substitute mobile phone provided by him to the complainant was returned by the complainant in a damaged condition but interestingly there is no evidence in that context.  The O.P had not examined any witness, not even his employee but had received the mobile phone of the complainant.

            When the O.P admits that the complainant had handed over her mobile phone for repair at the shop of the O.P and had turned up in the month of April,2019 to collect the same, the said mobile phone was not handed over to the complainant since because it was misplaced somewhere inside the said shop room which is a admitted fact.  It is also admitted by the O.P that since because he could not hand over the mobile set of the complainant to her, he had given her another similar set of mobile phone for temporary use.   When it is admitted that the mobile set of the complainant could not be given to her when she came to collect the same, it is crystal clear that there was definitely a deficiency in service on the part of the O.P.  To the contrary, the claim of the O.P that the temporary mobile phone which was given to the complainant for temporary use was returned in damaged condition lacks corroborative evidence.  The O.P could have examined his employee in his shop to establish the same and in the absence of such, it cannot be concluded that the complainant had damaged the mobile set given to her by the O.P.

8.         When it is made out that the complainant being a bonafide consumer had given her mobile phone for repair to the O.P and when it is claimed by her that the same was not repaired, the deficiency of service as complained of is quite clear.   It is because, there is no iota of evidence from the side of the O.P that the mobile set of the complainant was handed over to her being repaired.  As such, this Commission arrives at a definite conclusion that there were serious latches on the part of the O.P in providing service to the complainant.  As such, the complainant is entitled to get the cost towards her mental agony and sufferings together with litigation cost.  But since because she has not produced any evidence to prove that she had spent a sum of Rs.5000/-(five thousand) only for repairing of her mobile set, the same cannot be given to her.  When she admits to have received her mobile phone, the cost of the mobile as claimed by her does not hold good.  But undoubtedly she has suffered by running repeatedly to the shop of the O.P and since because nothing was taken care of she had to file this case by spending money.

 

                                                            ORDER

                        This Commission thus directs the O.P to pay a sum of Rs.4000/-(four thousand) towards mental agony and sufferings undergone by the complainant in this case together with a sum of Rs.4000/-(Four thousand only) towards litigation cost.  The order should be complied within a month hence.

            Order pronounced in the open Court on this the 7^th day of April,2022 under the seal and signature of this Commission.

 

                                                                                                                Sri Debasish Nayak

                                                                                                                            President

.

 

                                                                                                                              

                                                                                                                         Sri Sibananda Mohanty

                                                                                                                            Member.