Date of Filing: 27-01-2017 Date of Final Order: 31-08-2017
Smt. Runa Ganguly, Member.
This is a case u/s 12 of the Consumer Protection Act,1986. The brief facts of the present case as can be gathered from the case record is that the Complainant purchased one Micromax mobile Model No. E455 against consideration of Rs.9,800/- (Including VAT) under one Invoice dated 01/01/2016 from the O.P. No.4 for his personal use. The Complainant noticed within the warranty period that the said mobile set was not functioning properly for which the Complainant faced serious troubles and handed over the hand set to the O.P i.e. the Authorised Service Centre at Cooch Behar on 17.08.2016. The O.P. service centre did not render proper service and the Complainant did not receive the repaired hand set from the O.P. till 27.01.2017. The Complainant made several contact with the O.P. but all his effort were in vain. Thus, finding no other alternative, the Complainant has filed the present complaint U/S 12 of the C.P. Act, 1986 seeking relief as incorporated in the prayer portion of the complaint.
The Notices were sent to the all O.Ps. The O.P. No.2 appeared through Ld. Agent and contested the case. The O.P. Nos. 1,3,&4 did not appear before this Forum despite receiving the notice, for which this case proceeded Ex-parte against those O.Ps.
The O.P. No.2 by filing W/V contested the case contending inter-alia that the present case is not maintainable in the eye of law. Further contention of the O.P. is that the Complainant came to the O.P. with SIM connectivity problem in his mobile hand set. The O.P. No.2 sent the set to the Company and after thorough investigation the Company opined that the defect cause due to use of defective SIM cellular system device and mal handling. As such the alleged defect is not repairable. As per clause 6 of warranty condition “the defect caused by a defective function of the service provider cellular net work or other system, the warranty will not be applicable.”
The O.P. No.2 further contended that the O.P. no.2 after repairing the set within one month informed the Complainant to receive the set by depositing repairing charge of Rs. 1000/-. Then the Complainant denied to pay and receiving the set rather the Complainant forced for free servicing that is not covered under the warranty condition in this case. Thus, this O.P. has no deficiency in service and the case is liable to be dismissed.
By putting all this, the O.P. No.2 prayed for dismissal of this case with exemplary cost and also praying for passing any other order as this Forum may deem fit and proper.
In the light of the contention of the both parties, the following moot points are necessarily come up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Has the O.P. any deficiency in service as alleged by the Complainant and is liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully. Heard the argument at a length as advanced by the Ld. Agents For the Complainant and the O.P. No.1. Perused the documents along with evidence on affidavit of the parties.
Point No.1.
It appears from the documents made available in the record that the Complainant purchased a Micromax mobile hand set on payment of Rs.9,800/- from the O.P. No.4. The O.P. No.4 issued a Tax Invoice in favour of the Complainant. The Complainant hired service from the O.P. No.2 the authorised service provider of Micromax Mobile for repairing his Mobile Hand Set within the warranty period. Thus, in our considered view, the Complainant is a bonafide “Consumer” of all O.Ps. as per provision of section 2(1)(d)(ii) of the C.P. Act, 1986.
Point No.2.
The complaint value of the present case is far less than the prescribed limit of Rs. 20,00000/-. The O.P. No. 2, 3 & 4 are carrying on their business within the territorial jurisdiction of this Forum. Thus, no dispute appears in this point.
Point No.3 & 4.
Undisputedly, the Complainant purchased a Micromax mobile handset from the O.P. No.4 on payment of Rs. 9,800/-.
The point of the dispute is that the said handset was not functioning properly and the dispute appears within the warranty period. The Complainant handed over the handset to the O.P. on 17/08/2016 for repairing but till filing the present case the O.P. did not return the alleged set in working condition.
It is the case of the only contesting O.P. i.e. the O.P. No. 2 that the problem started in the alleged set due to insertion of a defective SIM and mal handling of the set. In case of defective function of the service provider cellular net work the warranty is not applicable. The O.P. No.2 asked for payment and sent the set to the Company for repairing.
On perusal the documents made available in the record, it appears that the Complainant purchased one mobile phone of Micromax Company on payment of Rs.9,800/- from the O.P. No.4. The said set started problem within the warranty period. The reported problem as per Job Sheet is “CELLULAR ACCESS (GCM) NO SERVICE” and received the total set from the Complainant. The Complainant handed over the said set within the warranty period.
The O.P. No. 2 in this case failed to adduce any document to show that the problem in the set was due to insert of defective SIM. The O.P. also never advice the Complainant to change the SIM for proper functioning of the set rather the O.P. did not repair and return the set on various pretext. The O.P. No. 2 has taken plea that after receiving the set he sent the set to the Company but the problem has not been repaired as per warranty condition. The Complainant had to pay for the said repair. Knowing the fact from the Company the O.P. No. 2 made contact with the Complainant to take return the set on payment of Rs. 1,000/- but the Complainant denied. We do not find any document to show that the O.P. asked the Complainant to receive the set in workable condition within due time.
The Complainant in his complaint petition as well as in evidence on affidavit clearly stated that till filing the present case, he did not receive the set from the O.P. No.2. For not rendering proper service within the warranty period and by non-returning the set to the Complainant in working condition, the deficiency in service of the O.Ps is squarely proved. Thus, the Complainant is entitled to get relief and compensation.
The O.P. No. 1,3&4 did not come forward before this Forum to contest the case in spite of receipt of notice that seems that the said O.Ps have nothing to challenge the allegations of the Complainant.
All the points have been decided in favour of the Complainant and the present complaint deserved to be allowed. Fees paid are correct.
Hence, it is
Ordered,
That the present Case No. CC/9/2017 be and the same is allowed on contest with litigation cost of Rs. 3,000/- against the O.P. No.2 and be dismissed ex-parte against the rest O.Ps. without cost.
The O.P. No. 2 is hereby directed to return the Mobile hand set to the Complainant in workable condition and free from all defects on receipt of maximum of Rs.1000/ as service charge from the Complainant by 30 days from the date of this order. The O.P. No.2 is further directed to pay the Complainant Rs. 3,000/- as compensation for his mental pain and agonies and litigation cost of Rs.3000/-. The entire order shall be complied by the O.P. No. 2 within 30 days from the date of this order failing of which the O.P. No. 2 shall have to pay Rs.50/-each for each day’s delay and the amount so accumulated will be deposited to the Consumer Legal Aid Account.
Let a plain copy of this Final Order be made available and be supplied free of cost to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action, as per Rules. The copy of this Final order will also be available in the following website :
confonet.nic.in
Dictated and corrected by me.
