O R D E R
(By Sri V.V.L. Narasimha Rao, President [FAC] on behalf of the Bench)
1. The present complaint is filed U/s 12 of C.P. Act, 1986 on 28.07.2011 against the opposite parties 2 and 3. Thereupon after clearing the objections raised by the District Forum and also opposite parties No.2 and 3 the complaint was registered. Thereafter M/s Micromax Informatics Ltd, was impleaded as Opposite Party No.1, by the complaint. The complainant requested the forum to direct the opposite parties (1) either to return the repaired cell phone or to replace a new Mobile set in place of defective cell phone or else to refund the amount of Rs.4,850/- i.e value of the mobile along with interest 12% p.a. from date of complaint till realization. (2) To pay compensation of Rs.50,000/- are causing mental agony. (3) To award costs for legal expenditure.
2. The brief averments are as follows:- The complainant submitted that he purchased Micromax GC No.255, cell phone vide IMEI: 1910001060071799 from the opposite parties 2 and 3 on 17.11.09 for Rs.4,850/- and the Warranty Period for the Mobile is 12 months from 17.11.09 to 16.11.10. While the complainant was using cell phone on 08.06.2010, there was a repair for the cell phone regarding Hands free not working. The 2nd opposite party received the defective Mobile and assured to get the repairs done and advised to contact the 3rd opposite party.
3. The 3rd Opposite Party promised to get the repairs done and shall be returned within one week, but the mobile was not returned to the complainant within time. Finally after repeated requests the opposite party-3 returned the defective mobile set to the complainant with doing the repairs. Because of the defect in the mobile set the complainant has faced so much difficulty. Having vexed with the attitude of the Opposite parties the complainant got issued a Legal Notice to the opposite party-3 on 09.08.10 to replace the defective mobile phone. The legal notice sent to the opposite party-3 was returned. Hence as there is no other go, complainant file the present complaint.
4. Notice serve to opposite parties. The opposite parties No.1 filed written version. The opposite parties 2 and 3 were set-exparte.
5. In the Written Version the Opposite party No.1 is stated as follows: The legal notice was not to the opposite party No.1 except the opposite party-3. The head office of Miscromax which manufacturers cell phones is situated in China, which is not made as a necessary party. So the complaint is not maintainable as per the law. Also there is no deficiency of service on part of the opposite party No.1. Even after that also the opposite party-1 has deposited the value of the mobile phone i.e. Rs.4,850/- in this forum on 08.05.13 as the complainant for refund of amount. The complaint is not entitled any compensation and damages from the opposite party. Hence, as there is no fault of opposite party No-1, the complaint is liable to be dismissed.
6. On perusing the pleadings of the complainant and the Opposite Party-1, the forum has framed the following points for consideration :
- Whether the complaint is maintainable before this forum as the main manufacturer of the Micromax Mobiles situated at China is not made as a party.?
- Whether there is deficiency of service on part of the Opposite Parties?
3. To what relief?
7. The complainant filed his evidence affidavit re-attending the facts mentioned in the complainant as his behalf Ex.A1 to A4 were marked.
8. The opposite party-1 inspite of filing the Evidence Affidavit, the opposite party-1 filed Two MEMOs dt 8.5.2013 and 23.4.2015 stating that, the opposite party-1 is depositing an amount of Rs.4,850/- vide Account Payee Cheque bearing No.057321, dated 25.4.13 which is on the name of the complainant.
9. As the complainant raised objection the opposite party-1 took back the Cheque N.057321 and deposited another Ac. Payee Cheque for Rs.4,850/- vide Account Payee Cheque 976150, dated 11.5.15 as per MEMO dated 01.06.15, which is drawn on the name of President, District Consumer Forum, Kakinada drawn on State Bank of India, New Delhi. The Section of the District Forum presented the cheque for clearing and the said amount was adjusted in the P.D. Account of the District Forum, Kakinada. As on today the amount of Rs.4,850/- which was deposited by the opposite party-1 in the forum is lying in the PD A/c of the forum, which was not taken by the complaint.
10. As per Rule-4 (7) of AP Consumer Protection Rules 87, when the opposite party admits allegation made by the complainant the district forum shall decide the complaint on the basis of the merits of the case and documents presented before it.
11. The complainant called absent and there is no representation from his side since two adjournments. The counsel for the OP-1 submitted his arguments. The Opposite Party-1 stated, “At the time of the arguments that the Defective Mobile Set is with the complainant only and it was not handover to the opposite party-1 as on today”. Heard opposite party No.1. As the opposite party-1 as deposited the value of the mobile phone before this forum vide MEMO Dated 01.06.15, observing the principle of Rule 4 (7), which was referred in Para 8 Supra, the matter was posted for order as per the principle of section 13 (2) C of Act.
12. Point No. 1 to 3: The present complaint is filed by the complainant against the opposite parties-1 to 3 alleging deficiency of service for, not doing the repairs for his Micromax Mobile, which was purchased from the Opposite Party-3 on 17.11.2009 for Rs.4,850/-. The opposite party-1 was impleaded in the complaint later on. After filing the Vakalatnama, the opposite party has deposited the value of the mobile phone Rs.4,850/- in the district forum and as on today the complainant has not taken the said amount from the forum.
13. With regarding to the point of territorial Jurisdiction of the forum : In the Counter the opposite party No.1 raised objection that the present complaint is not maintainable as the main manufacturer of the Micromax mobiles situated at China is not made as a party. On perusal of the cost title it reveals that the main dealer of the Micromax mobiles situated at New Delhi was impleaded as a party (i.e. OP -1) and when the opposite party no-1 is admitting the allegation leveled by the complainant has deposited value of the Mobile phone Rs. 4,850/- in the District Forum vide Cheque No.976510, dated 11.5.15, which was presently with the District Forum P.D. Account, we are of conclusive opinion that this forum is having territorial jurisdiction to entertain the present complaint as per the act.
14. With regarding to the point of deficiency of service on part of opposite parties No.1 to 3 : The complainant has filed four documents in support of his claim. Ex.A1 is the invoice/bill dated 17.11.09 for Rs.4,850/- which was purchased from opposite party No.3 for purchasing Micromax GC – 255 Mobile. Ex.A2 is the customer job card given for the Micromax mobile ,dated 08.06.10 which shows that there is defect of Hands free N/W, in which the signature of the complaint there Ex.A3 is the demand notice serve to the opposite party No.3, dated 09.08.10, demanding the opposite party-3 to return the repaired mobile set to him. Ex.A4 is the postal cover sent to opposite party-3 along with postal receipt, Dt. 09.09.2010
15. On perusal of the Ex.A1 and the admission of the complainant that the mobile phone is with repair from 08.06.10 along with Ex.A2 job card, we are of opinion that, after purchasing the mobile phone, complainant has used the same perfect condition for i.e. from 17.11.09 to 08.06.10. The said repair for the mobile was occurred within the warranty period.
16. Observing the Ex.A1 and A2 job card along with the contention of the complainant vide Para No.5 of complaint and Para No.4 of complainant evidence affidavit it reveals that the opposite party No.3 though knowing the facts about the repair in the mobile phone did not respond either for doing the repairs or for replacement of another mobile in place of defective one.
17.Hence in the light of the facts under the circumstances and material record placed before us , we are of conclusive of that there is deficiency of service opposite parties No. 1 to 3, in not responding to the request of the complainant to replace the mobile phone or to do repairs for the same.
18. As per Para No-15 supra, we concluded that there is deficiency of service opposite parties No. 1 to 3. Now the point for determination is to what relief the complainant is entitled.
19. As per the admission of the complainant and observing the Ex.A1 (Bill, dated 17.11.09) and Ex.A2 (Job card), itself reveals that the complainant has utilized the Micromax mobile for 204 Days 17.11.09 (Date of purchase) to date of first repair i.e., 08.06.10. The mobile phone worked perfect 204 days and then repairs started. As per the case law I (2014) cpj 51 (Goa), ACCEL FRONTLINE ltD Vs Anant Govind Kandeparkar, the Hon’ble Goa State Commission held as the complainant as utilized mobile phone for more than 7 months and there was continuous repairs for the mobile set. The complainant is entitled to get refund of 2/3 of the price mobile and the cost and compensation awarded by the district forum shall remain unchanged.
20. Here in this case on hand : the facts and circumstances case law I (2014) 51 (Goa), and the facts in the present case are similar. The complainant herein this case has utilized the mobile set nearly for 7 months i.e. 204 days without any defect. Hence observing the principle of the case law I (2014) 51 (Goa) along with Ex.A1 and A2 we conclude that the only equitable remedy available to the complainant is Rs.3,234/- only (i.e., 2/3 of the value of mobile set, Rs.4,850/- minus Rs.1616/- = Rs.3,234) from the opposite parties No. 1 to 3 on return of the defective mobile set to the any of the opposite parties. Already the opposite party No.4 has deposited an amount of Rs.4,850/- in District Forum, Kakinada vide Account Payee Cheque No.976150, dt.11.05.15.
21. With regarding to the compensation: On perusal of the facts and pleadings of complainant and Opposite Party-1 and observing the Ex.A2 Job Card, as Interest is not awarded to the complainant we are of opinion that the complainant is entitled for some compensation form the Opposite Parties NO.1 to 3. As the excess amount of Rs.1616/- ( i.e. Rs.3234/- minus Rs.4850/- = Rs.1616/-) is there lying in the forum P.D.Account, the same is treated as compensation to the complainant from Opposite Parties No.1 to 3.
22. With regarding to the award costs : On perusing the Ex.A2 to A4 we conclude that the complainant is entitled for Rs.1000/- only from the opposite parties. The opposite parties jointly and severally has to pay the said amount to the complainant.
23. At the time of arguments the opposite party No.1 stated the defective Mobile Set is with the complainant only. Observing the facts admitted by the complainant (In Para- 4 of complaint and evidence affidavit) it reveals, as on today the defective mobile phone is with the complainant only.
24. As the opposite party No.1 alone has deposited the entitled amount of Rs.4,850/- in the forum, the complainant can take the said amount from the District Forum by filing cheque petition along with the original receipt given by the any of the opposite parties after receiving the defective mobile set. Opposite parties 1 to 3 are jointly and severally liable to pay the costs of Rs.1000/- to the complainant.
25. In the light of the facts, the complaint is allowed in part. The complainant is directed to handover the defective mobile set to the any of the opposite parties i.e., opposite parties No.1 to 3 and shall obtain Acknowledgment of Receipt to that extent. After taking the receipt from any one of the opposite parties, the complainant can file for Rs.4,850/- (Rupees Four thousand eight hundred and fifty only) in the District Consumer Forum-I, Kakinada by enclosing Original Receipt given by the opposite parties and he can take the said amount without any notice to the opposite parties 1 to 3. The section of the District Forum-I, Kakinada is also directed not to pay the amount of Rs.4,850/- to the complainant unless the complainant furnishes the original receipt any given by anyone of the opposite parties regarding receipt of the defective mobile phone. The opposite parties 1 to 3 are jointly and severally liable to pay an amount of Rs.1000/- towards costs to the complainant.
Accordingly Point No. 1 to 3 are answered.
26. In the result, the complaint is allowed in part. The complainant is directed to handover the defective mobile set to the any of the opposite parties i.e., opposite parties No.1 to 3 and shall obtain Acknowledgment of Receipt to that extent. After taking the receipt from any one of the opposite parties, the complainant can file for Rs.4,850/- (Rupees Four thousand eight hundred and fifty only) in the District Consumer Forum-I, Kakinada by enclosing Original Receipt given by the opposite parties and he can take the said amount without any notice to the opposite parties 1 to 3. The section of the District Forum-I, Kakinada is also directed not to pay the amount of Rs.4,850/- to the complainant unless the complainant furnishes the original receipt any given by anyone of the opposite parties regarding receipt of the defective mobile phone. The opposite parties 1 to 3 are jointly and severally liable to pay an amount of Rs.1000/- (Rupees One thousand only) towards costs to the complainant. Time for compliance is 30 days from the date of receipt of this order.
Dictation given by the Steno, transcribed by her, corrected and pronounced by us, in open Forum, this the 29th day of June, 2015.
Sd/xxxxxx Sd/-xxxxxxxxxxx
MEMBER PRESIDENT [FAC]
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant : None For opposite party : None
DOCUMENTS MARKED
For complainant:-
Ex.A1 Dt. 17.11.09 Copy of Bill of cell phone issued by 2nd opposite party
Ex.A2 Dt. 08.06.10 Job sheet issued by 2nd opposite party
Ex.A3 Dt.09.08.10 Office copy of Demand Notice issued by complainant to the
3rd Opposite party
Ex.A4 Dt.09.09.10 Postal return cover from the 3rd opposite party
For Opposite party No.1 : Nil
Opposite party No. 2 & 3 :Nil
Sd/-xxxxxxxxx Sd/-xxxxxxxxxxxxx
MEMBER PRESIDENT [FAC]
