Date of Filing: 10.03.2014 Date of Final Order: 30.10.2014.
The case of the complainant Sri. Subir Kr. Das is that, to see the website (www.micromaxinfo.com) he came to know the features of the mobile phone, model of “Micromax A-35 Bolt” and also knows that the said mobile phone was an ‘Android Smart Phone with 3G facility, Dual Sim, and many more. After see the features the complainant on 04-06-2013 purchased a Micromax A-35 Bolt Model Mobile Set with battery & Charger from the Showroom of Micromax Mobile of Fushraj Bachhraj, Biswa Singha Road, Cooch Behar (O.P. No.4), at Rs.4,100/-, with assurance of proper service from Service Centre of Micromax Mobile i.e. ‘M/s. Mahamaya Enterprise’, Cooch Behar (O.P No.3). From the date of purchasing of the said handset, there was disturbance in operational functioning. The Complainant went to Mahamaya Enterprise (O.P. No.3) for repair the said mobile phone on 25-06-2013. After first time repair, the complainant facing problem in the said mobile phone and he handed over his mobile phone in several dates i.e. 19-07-2013, 30-09-2013 & 07-12-2013 to the O.P. No.3 for repairing the Software & Battery problem, but all are in vain. After that on 18-12-2013 the complainant received the said mobile phone after repairing but problems are still in existence which is given as follows.
- Lock Problem,
- Home Key not working
- Hang the phone in operating time
- Network problem
- During open the lock the phone automatically going to OFF mode then again automatically going to ON mode.
The complainant made several contacts personally/over phone with the O.P. No.3 narrating the incidents, with request to replace the defective Mobile Set or solve the defects; but in vain. The Complaint three times placed the set before the servicing centre but the problem in the set did not cure. He faced hindrance, suffering resulting to irreparable loss, harassment, acute mental pain, agony, pecuniary loss & unnecessary harassment due to deficiency in service & unfair trade practice of the O.Ps. Hence, he filed the instant case before this Forum for redress of the dispute with I.P.O. of Rs.100/- and prayed for direction to the O.Ps to (1) Rs.4,100/- as the price of the Mobile phone, (2) Pay compensation of Rs.20,000/-for mental pain, agony, unnecessary harassment, deficiency in service & unfair trade practice, (3) Rs.500/- towards litigation cost.
On the basis of above DF Case No.16/2014 was registered. After admission hearing 11-07-2013 was fixed for S/R and appearance. On 11-07-13, for the O.P. No.1&2, Mr. Dhruba Jyoti Roy appeared by filing an Agentnama and also files a petition for time as a procedure of mutual settlement is going on. The O.P. No. 3 appeared through his Ld. Adv. Mr. Himadri Sekhar Roy with a undertake to file W/V and Agentnama on next date. None appear on behalf of the O.P. No. 4 despite receive the notice. After that O.P. No. 1,2 &4 did not appear for which the proceeding do run ex-parte against the said O.Ps.
It is transparent that the petition of complaint as to Consumer Disputes has been discussed herein before. Now, from the written version of the O.P. No 3, it appears that the allegation has been denied in various languages. He however, denied the alleged defects and claimed that all the due services were rendered to the complainant by repairing works. He has alleged against the complaint stating the same as vague, false and as such denied and prayed for dismissing with cost for ends of justice. This O.P. further contended that the Complainant purchased one Android Set having multiple software with latest version so he should handle the same with proper knowledge and needs formatting its software time to time otherwise these sorts of problems may occur any time. The Complainant has brought the Mobile hand set for repair on 07.12.2013 for software and battery backup problem and the O.P. after repair handed over the set to the Complainant. Further the Complainant went to the O.P. No. 3 Complaining display problem which was also repaired and the Complainant received the set with full satisfaction with an advice to format its soft ware time to time. This O.P. also averred that the problem in the alleged hand set cropped up due to miss handling and lack of proper knowledge for using the same. The O.P. No. 3 is a reputed service Provider who never avoids its customer and renders service with their utmost care sincerely. Putting all these, the O.P. prayed for dismissal of the case with cost.
Further, for the O.P. No.3 it has been argued and claimed that he provided services as an when the complainant produced the said handset at his service centre, after thorough checkup and after full satisfaction he handed over the said mobile to the complainant as such he caused no deficiency in service. The mobile set, having multifarious functions, being roughly used invited such problems. He further assailed that the complainant has not filed any iota of document/evidence of any expert to substantiate the alleged manufacturing defects. Hence, he also prayed for dismissal of the complaint.
The documents filed for the complainant are marked Exhibits for the sake of gravity of discussion and identification of the documents as bellow:
Exhibit-1. Original Tax Invoice No.2043414/103 dated 04.06.2013 dated of Fushraj Bachhraj in respect of the Micromax -A35 at Rs.4, 100/- (including vat).
Exhibit-2. Web Page Photo Copy.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant is a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISSION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
Point No.1.
From the discussion it is transparent that the complainant purchased a Mobile hand set manufactured by the Micromax Company from O.P. No. 4 on payment of Rs. 4,100/- and the O.P. No. 4 issued a Tax Invoice in favour of the Complainant. Thus, the Complainant is directly consumer of the O.P. No. 1,2 and 4. He is also consumer of the O.P. No.3 i.e. Mahamaya Enterprise, the Servicing Centre. It is also transparent that the Complainant went several times to the O.P. No. 3 for servicing his Mobile Hand Set and the O.P. No. 3 issued Job Sheets in the name of the Complainant as such the Complainant is also a Consumer of the O.P. No. 3.
Point No.2.
Both the complainant and O.P. No.3 & 4 are residents/carrying on business within the district of Cooch Behar. The complaint valued at Rs.24,600/- at valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
Point No.3.
There is no iota of evidence that the O.P. Nos.3 & 4 practiced their business in unfair manner, rather the O.P. No.3 at instance of the O.P. No.1 reasonably for good relation with O.P. No.2 might have under taken the job of repairing of the mobile set. The service centers are authorized by the concerned companies for rendering service to the customers of the company and not of the authorized dealer/seller of the goods in the market. Hence, the authorized dealer/seller should not be and cannot be held liable for any deficiency in service. The O.P. No.4 sold the mobile set on receipt of price of the mobile together with vat. Hence, apparently we find no reason to hold the O.P. No.4 liable either for unfair trade practice or for deficiency in service. The O.P. No. 4 only sale the mobile hand set of Micromax Company, he is just a seller not even the Dealer of Micromax Company. The Complainant also has no allegation against the O.P. No. 4.
Evidently, on behalf of O.P. No. 1&2 Ld. Advocate by filing a petition on 24.04.2014 contending replacement of the alleged defective mobile and prayed for time but after that no step has been taken by the Agent of the O.P. No. 1&2. At best, for achieving good reputation and increase of sale might have offered replacement of the mobile set admitting manufacturing defect of this set by stating in the petition of the Ld. Adv for the O.P. No. 1&2 dated 24-04-2014, admitted fact that he wants to settle the case by replacing the disputed mobile hand set attracts the liability as admitted fact need not be proved. But the O.P. No. 1&2 failed to settle the dispute and never came forward to contest the case.
The Complainant vehemently argued that the O.P. No. 3 did not render proper service which he entitled to get as the problem in the hand set cropped up within a very short period of purchasing the same. It appears that the Complainant handed over the disputed set to the O.P. No. 3 for repairing. The O.P. No. 3 render proper service two times but the dispute still existed. Annexure 2&3 clearly shows that on 7.12.2013 & 18.12.2013 two times Complainant went to the O.P. No. 3 but in the Complainant petition Complainant stated that he also went there on 25.06.2013, 19.07.2013& 30.09.2013 but no documents filed by the Complainant.
Be that as it may, it is clearly established that the Mobile hand set in question have some disputes in functioning properly and that cannot be solved even after servicing by the O.P. no. 3 several times. Thus, it reasonably be presume that there is some inherent defects in the said hand set. The disputes cropped up within the warranty period. The Complainant also stated that the handset as purchased by the complainant is not identical as per description in Annexure-4. Thus, they running their business with the arm of unfair trade practice. Moreover, the manufacturer of the said Mobile hand set i.e. the O.P. No. 1&2 through their Ld. Agent admitted the fact of defective hand set and wanted to replace the said set but failed. Ultimately, the desire of the Complainant to use the Mobile set without any hassle is totally satire for which the Complainant must be awarded with reasonable relief.
Point No.4.
In view of discussions, herein before, we find no cogent ground to hold the O.P. No. 3&4 liable, but we find O.P.Nos. 1&2 liable to compensate the complainant to a reasonable extent.
Accordingly, the Complaint succeed.
ORDER
Hence, it is ordered that,
The complaint do succeed and the same is allowed in ex-parte but in part with cost of Rs. 500/-, against the O.P. No.1 & 2 and dismissed against the Opposite Party No.4 in ex-parte and on contest against O.P. No.3. The Opposite Party No.1 & 2 are hereby directed to pay the reasonable compensation of Rs.1,000/- plus Rs.500/- (cost) to the complainant by jointly and/or severally. The O.P. No. 1&2 are further directed to replace the Mobile Hand Set with similar description or to pay the complainant the price of the Mobile Hand Set i.e. Rs.4,100/-. The O.P No 1&2 are to complied with the aforesaid order jointly and/or severally within 60 days failure of which they shall have to pay @ Rs.50/- each for each day’s delay, and the amount to be accumulated if any, shall be deposited in the State Consumer Welfare Fund, West Bengal.
Let plain copy of this Final Order be supplied, free of cost, to the concerned party/ld. Advocate by hand/ be sent under Registered Post with A/D forthwith for information and necessary action, as per Rules.
