DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 1721/2015
Date of Institution : 02.12.2015
Date of Decision : 21.07.2016
Vipin Kumar son of Hukam Chand resident of Sukhanand Basti Tapa Mandi Tehsil Tapa Mandi District Barnala.
…Complainant
Versus
1. Micromax informatics Ltd. 21/14 Block-A Phase-II, Nariana Industrial area Delhi-110028, Phone No. 0114-9790000.
2. M/s Dhaliwal mobile repair shop No. 25, SABHA complex, handiaya Bazaar Barnala through its prop./authorized signatory.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. Gagandeep Garg counsel for complainant.
Sh. V.S. Duggal counsel for opposite party No. 1
Opposite party No. 2 exparte.
Quorum.-
1. Shri S.K. Goel : President.
2. Sh. Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(BY Ms. VANDNA SIDHU, MEMBER):
1. As per complaint No. 1721 of 2015 complainant purchased a mobile Micromax A350 having IMEI No. 911367701378376 and 911367701378378 from Amazon.com through online system. The price of its 13,500/- vide order No. 402-4374868-4774755 on dated 10.12.2014 with one year warranty from anywhere in India and amount of that bill is paid by complainant through Debit Card of HDFC Bank Branch Tapa Mandi. On 13.3.2015 battery of mobile set created problem and mobile started to produce over heat when it was used by complainant. Some times its touch left to work properly. Complainant approached to the opposite party No. 2 to remove the defect of said mobile because mobile was under warranty. Opposite party No. 2 kept the said mobile and give information to the complainant that it will be repaired at centre Chandigarh. So, complainant deposited the said mobile with opposite party No. 2 and opposite party No. 2 returned the said mobile after two months i.e in the month May 2015. In July mobile set raised problems and complainant approached to the opposite party No. 2 and opposite party issued a job card in the name of complainant's brother named Lucky and assured to come after two days. Complainant approached to the opposite party No. 2 and opposite party No. 2 told to the complainant that it will be repaired by higher head office at Chandigarh, it will be informed by the opposite parties to complainant after repair of the mobile. On 10.10.2015 complainant get information about delivery of said mobile by opposite party No. 2, but complainant astonished to see that IMEI of the received mobile was not as per written in the job card. Complainant raised objections and opposite party No. 2 assured that he will talk to higher authorities and they will change it. So, under protest complainant received the mobile. Complainant was also astonished when he saw that on first time when mobile was sent for repair it was changed and again on second repair the mobile set was again changed by opposite parties without informing complainant because at present mobile which received by complainant does not match either with original or as per written on job card 17.7.2015. Complainant immediately informed to opposite party No. 2 about that all. Opposite party No. 2 refused to hear and for any help for complainant. Still hanging problem and touch problem is in existence. Complainant told about above said problem to opposite party No. 2 but opposite party flatly refused to repair it. It is mal practice and un-fair trade practice on behalf of opposite parties that changing mobile without informing to complainant two times. It has also deficiency in service on the part of opposite parties not repair the mobile properly and changed it with another without informing complainant and not changing the mobile set with new one of refund the amount of said mobile. The opposite parties may kindly be directed to change the said mobile with new one or to return the amount to tune of Rs. 13,500/- and further directed jointly and severally to pay Rs. 20,000/- to the complainant.
2. Upon notice opposite parties filed their version that complainant is not consumer of opposite parties because the mobile set was purchased by Sh. Ravi Kumar. It is nowhere explained in complaint as to how the mobile set came to the hands of the complainant and in what capacity and Ravi Kumar had purchased the mobile set in question in Bathinda and as such this Hon'ble Forum has no territorial jurisdiction to entertain, hear and decide the present complaint. Complainant has no locus-standi and cause of action to file the present complaint as present complaint false frivolous and vexatious as per section 26 of the Consumer Protection Act. On merits, it was objected by opposite parties that the mobile set was having problem and touch screen was not working and mobile set was presented for repair by Sh. Ravi Kumar and after repair the mobile set was delivered in the month of May. The defect of power switch of was repaired. So far IMEI number of the mobile set written on the job sheet is concerned it may be a clerical mistake. It is specifically denied that mobile set was changed. As per merits there is no unfair trade practice as alleged because the same mobile set was repaired and delivered. The present complaint is filed out of greed for getting the mobile set replaced or get the refund.
3. To supporting complaint, he tendered into evidence his own affidavit Ex. C-1, affidavit of Ravi Kumar Ex.C-2, copy of bill Ex.C-3, copy of statement of account Ex.C-4, copy of Job Card Ex.C-5, copy of Job Card dated 13.3.2015 Ex.C-6, copy of mobile box Ex.C-7 and closed the evidence.
4. The counsel for opposite party No. 1 made a statement that the opposite party No. 1 does not want to lead any evidence and closed the evidence.
5. We have heard the Ld. Counsel for the parties and have gone through the record.
6. The first point is to determine whether the mobile in question having manufacturing defect and therefore, it is liable to be replaced with new one or to refund the price of the mobile. In regard to prove the said mobile having manufacturing defect the complainant placed on record Ex.C-5. Moreover the complainant bought this mobile on the basis of IMEI number but on his job card IMEI number has changed. Opposite party did not bring on record any proof that how and why original IMEI number changed on job card on dated 17.7.2015. So the version of the complainant is correct on this extent that on first time at the time of repair in March 2015 mobile set was changed with original and again on second repair mobile set was again changed by the opposite parties without informing complainant, so in the opinion of this Forum it is a mal practice and deficiency of opposite parties.
7. It is also a deficiency on the part of the opposite parties that mobile in question was not in proper condition despite of repair by the opposite parties. Opposite parties in their reply on merits admitted themselves about clerical mistake in regard change of IMEI number of the mobile. So, it is clear deficiency in service and unfair trade practice on the part of opposite parties.
8. Moreover, Ex.C-2 is affidavit of one Mr. Ravi Kumar son of Amar Nath resident of Bathinda who deposed in his affidavit that complainant and deponent have friendly relationship and the mobile in question is purchased online by the complainant as per his statement on 10.12.2014 and he stated that his post address is given for the delivery of the said mobile to the opposite parties. He further stated that the mobile is within the custody of the complainant and the complainant is using the said mobile from the date of delivery/purchase. He further deposed that he never paid any amount to the Amazon. Com company for the said mobile. His affidavit is not rebutted by the opposite parties. The onus to prove that the mobile is in working condition and is free from any defect was on opposite parties and they have miserably failed to prove the same. Hence this Forum is of the opinion that mobile in question is liable to be repaired by the opposite parties.
9. The Hon'ble Chhattisgarh State Consumer Disputes Redressal Commission, Raipur in case titled Aditi Kejriwal and Anr Versus Cinni Sales Company and Ors reported in 2011 (1) CPJ-427 held as under.-
“Consumer Protection Act, 1986 Sections 2 (1) (g), 14 (1) (d) and 15 Goods- Warranty-Repair-'Consumer'-Complainant purchased Air Conditioner from cooling the room properly- Alleged deficiency in service-Complaint-Dismissed- Hence Appeal-Bill might be in any name, but air conditioner was purchased for personal use and not for resale or for any other use of commercial purpose-Complainant was a consumer- Defects could not be held to be generated because of faulty electric supply-OP liable to repair or replace parts which in warranty-Order of fora below quashed-Appeal disposed of.”
10. Further, Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled P.G. Pai Versus Care Elevators and Engg. Co. Pvt. Ltd. And others reported in 2015 (1) CLT-273 held that.-
“(i) Elevator/Lift-Consumer- The deceased did not directly pay any consideration for availing the facility of the lift provided in the building, but that would be inconsequential considering the definition of the 'consumer' given in Section 2 (1) (d) (ii)- Deceased being beneficiary with the approval of person paying consideration falls within the definition of consumer-
Rs. 1,23,00000/- compensation paid.”
11. In view of the above discussion the present complaint is accepted and the opposite parties are directed to repair the mobile in question and to make it in working condition within 30 days from the date of the receipt of the copy of this order and if they found that it cannot be repaired the opposite parties are directed to replace the mobile with new one. The opposite parties are also directed to pay Rs. 1,000/- as compensation on account of mental agony, harassment and due to unfair trade practice. This order shall be complied with within 30 days from the date of the receipt of this order. Copy of the order be supplied to the parties free of costs. The file its due completion be consigned to records.
ANNOUNCED IN THE OPEN FORUM:
21th Day of July 2016
(S.K. Goel)
President.
(Karnail Singh)
Member.
(Vandna Sidhu)
Member.
