Haryana

Panchkula

CC/325/2019

SAHILGARG. - Complainant(s)

Versus

MOBILE HOT SPOT. - Opp.Party(s)

ANURADHA SOHAL

22 Apr 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                       

Consumer Complaint No	:	325 of 2019
Date of Institution	:	04.06.2019
Date of Decision	:	22.04.2022

 

Sahil Garg,  resident of House No.232-A, Sector-51-A, Chandigarh

 

 

                                                                           ….Complainant

Versus

1.     Mobile Hot Spot, SCO No.44, Sector-11, Panchkula-134109 (Haryana) through its authorized signatory.

2.       Instant Solution(Service Centre), SCO No.207, 2^nd Floor, Sector-14, Panchkula Pin-134113  through its authorized signatory.

3.       Nokia India Pvt. Ltd. S.P.Info City, Industrial Plot No.243, Udyog Vihar, Phase I, Dundhera, Gurgaon-122016 through its Care Manager.                                                                                                                                              ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

 

For the Parties:   Ms. Anuradha Sohal, Advocate for the complainant.  

Defence of OP No.1 already struck of vide order dated 14.11.2019.

OP No.2 already ex-parte vide order dated 04.10.2019.

Ms.Nishi, Advocate for the OP No.3.

ORDER

(Satpal, President)

1.             The brief facts of the present complaint are that the complainant had purchased a Nokia Mobile Handset Model 6.1, IMEI No.353398091937814 on 10.09.2018 from the OP No.1 after paying a valuable consideration of Rs.15,500/- with one year warranty. After 15/16 days of its purchase, the camera of the handset stopped working. The complainant brought the said defects into the knowledge of the OP No.1. On the advice of the OP No.1, the complainant visited the OP No.2 and the same day the officials/Centre’s engineer repaired/updated camera’s or mobile’s software and camera started working and on the assurance of the OP No.2, the complainant received the delivery of the handset.  After few days, the said problem in the handset again arise, and again the officials of the OP No.2 repaired and updated camera’s or mobile’s software and camera started working. But again just after few months, the display, touch of the said handset, stopped working. The complainant again visited the OP No.2 and the official of the OP No.2 disclosed that touch screen is technically damaged and it has to be replaced with new and come after 10-15 days. Thereafter 15 days the complainant visited the OP No.2 and the officials of the OP No.2 handed over the handset and disclosed that the touch screen of the handset has been replaced. But it was astonishing for the complainant when on 16.04.2019 the display of the handset again stopped responding and its seems that the device is technically dead. Further, the display got freezed and colours got faded and again on the same day, the complainant visited the OP No.2 and requested to replace the said handset as the said handset containing manufacturing defects but the officials of the OP No.2 refused to replace the handset and retain the handset with the assurance that the handset will be made defect free. Thereafter, the complainant visited time and again in this regard but of no use. The above said act of the Ops shows gross deficiency in service and indulged in unfair trade practices and had caused constant mental agony and harassment to the complainant; hence, the present complaint.

2.             Upon notice, the OP No.1 has appeared through Authorized Representative to contest the complaint; but he did not file the written statement despite availing several opportunities including the last opportunity. Therefore, the defence of OP No.1 was struck off by this Commission, vide its order dated 14.11.2019. 

                Notice was issued to the OP No.2 through registered post (vide registered post No.RH38045765IN on 27.08.2019) which was not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OP No.2; hence, it was deemed to be served and thus, due to non appearance of OP No.2, he was proceeded ex-parte by this Commission vide its order dated 04.10.2019.

                Upon notice OP No.3 appeared through counsel and filed their written statement by raising some preliminary objections that complaint is not maintainable being based on false, frivolous and baseless; no cause of action; the complainant does not fall within the definition of ‘Consumer’. On merits it has been stated that the impugned mobile phone i.e. NOKIA 6.1 purchased by the complainant did not suffer from any manufacturing defect and the complainant’s allegations that the camera stopped working and touch screen and display problem are false and baseless. It is submitted that the complainant had mentioned in the complaint that the handset was submitted for repair four times whereas the complainant had not supplied any job sheet alongwith the present complaint. It is also submitted that there is no manufacturing defect in the product as alleged, as the product has been used by the complainant for a period of five months without any defect and fault from the date of purchase of the handset.  It is stated that the alleged defect of display not working has been occurred due to the mishandling of the handset by the complainant. However, the complainant has not filed any job sheet of his visit to the service. The complainant has also failed to provide any evidence/ documentary proof in reference to the alleged problem incurring in the product. The manufacturing company subjects its products to stringent quality control mechanisms to ensure that the mobile phone which reaches the consumers if free from defects and above all, is genuine. The complainant’s case is sheer reflection of misuse of the mobile phone, hence the answering OP cannot be held responsible for irresponsible and negligent handling of the mobile phone by complainant.  It is further submitted that the handset was repaired by the service centre during the warranty period and the service center informed the complainant that the defect has been rectified and asked the complainant to take back the handset but the complainant refused to take back the handset and demanded the refund of the price of the handset. Thus, there is no deficiency in service on the part of OP No.3 and the complainant has not suffered any harassment or agony and prayed for dismissal of the present complaint

3.             The learned counsel for complainant has tendered the affidavit as Annexure CA along with documents Annexure C-1 to C-5 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.3 has tendered the affidavit as Annexure R3/A  and close the evidence.

4.             We have heard the complainant as well as learned counsel for OP No.3 and gone through the entire record including written arguments filed by the complainant as well as OP No.3, minutely and carefully.

5.             In the present complaint, the replacement of the mobile set, which was evidently purchased by the complainant from OP No.1 vide invoice dated 10.09.2018(Annexure C-1) or the refund of its purchase price amounting to Rs.15,500/-, has been claimed alleging that the said mobile set became defective on several occasions, during the warranty, period  on account of defects in its camera, touch screen and display etc. As per version of the complainant, he visited the OP No.2 in connection with the necessary repairs of the mobile set within 15-16 days of its purchase on account of defect in its camera and thereafter, approached the OP No.2 on several occasions on account of defects in its camera as well as touch screen etc. According to complainant, he again approached the OP No.2 on 16.04.2019 as the mobile set became technically dead on account of manufacturing defect in it and since then the mobile set is lying in the custody of OP No.2. 

6.             The OP No.1 did not file its written statement and accordingly, its defence was struck off vide order dated 14.11.2019. The OP No.2, who has a significant and important role in the present matter, did not appear despite service and thus, it was ordered to be proceeded ex-parte vide order dated 04.10.2019; hence, there is no rebuttal qua the averments made by the complainant in the complaint as well as in the affidavit Annexure C-A.

7.            The OP No.3 has contested the complaint denying the manufacturing defect in the mobile set. The learned counsel for the OP no.3 contended that there is no manufacturing defect in the mobile as alleged as it was used by the complainant for a period of 5 months without any defect and fault from its purchase. It is contended that the complainant has not filed any job-sheet in support of his contention that he visited the OP No.2 on several occasions. It is contended that the alleged defect in the mobile set had occurred due to its mishandling at the level of the complainant. It is further contended that mobile set is now completely free from any defects as its necessary repairs had already been carried out by OP No.2 and thus, the complaint is liable to be dismissed. Reliance has been placed upon the judgment passed by the Hon’ble National Commission in case titled as B.H.Kerudi(Dr) Vs. M.D.S.Mitra & Co.III(2002) CPJ 299(NC).

8.             Admittedly, display of the mobile set was replaced in Feb, 2019 vide Job sheet no.576433527/190202/001 as per averments made in Para No.7 of reply on merits of written statement of OP No.3. Further, it is also an admitted fact that the complainant again approached the OP No.2 in April, 2019 as per averments made in Para No.8 of reply on merits of written statement of OP No.3 and was provided another alternative set till the defects of the mobile set in question are repaired. Thus, the contentions of the OP No.3 that there are no job-sheets on record qua the visits of the complainant to OP No.2, are incorrect and baseless. The further contentions of the OP No.3 that the mobile set in question is now free from all defects but the complainant is not collecting the same is also not tenable as no correspondence in any shape i.e. letter, e-mail etc. between the OP No.3 and OP no.2 showing that mobile set in question is now free from all defects, is not made available on record.  As stated above, the OP No.2 preferred not to defend the present case. Therefore, the bald assertions made by the OP no.3 regarding the mobile set in question to the effect that it is now free from all defects, are liable to be rejected being not corroborated by any credible and cogent evidence. Even, during the adjudication of the present complaint, the mobile set was not presented before the Commission for its onwards submission to the complainant. The mobile set in question is still lying in the custody of OP No.2, who is no longer interested to look into the genuine grievances of the complainant. The above stated facts leave no doubt of any kind in any manner as to the fact that the OP No.2 has not been able to rectify all the defects of the mobile set. According to the averments made in Para No.8 of the preliminary submissions of the written statement filed on behalf of the OP no.3, replacement is permissible where repair is not possible and or where there is genuine problem of repeated repairs of the same problem. In the present case, the complainant is facing the problem of occurrence of problem in the mobile set on one account or the another since its very purchase but the OPs No.2 & 3 are evading their duty by not redressing the genuine grievance of the complainants. In view of the aforesaid discussion, we have no hesitation to conclude that there has been lapse and deficiency on the part of the Ops No.2 & 3 while delivering services to the complainant; hence, the complainant is entitled to relief. The present complaint is dismissed qua OP No.1.

9.             As a sequel to above discussion, we partly allow the present complaint with following directions:-

1. The OPs No.2 & 3 are directed to refund a sum of Rs.15,500/- along with interest @ 9% per annum to the complainant w.e.f. the date of filing of this complaint till realization subject to return of the stand by mobile set by the complainant to the OP No.2.

 

2. The OPs No.2 & 3 are also directed to pay a lump sum amount of Rs.5,000/- on account of mental agony, harassment and cost of litigation charges to the complainant.

 

10.               The OPs No.2 & 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the Ops No.2 & 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced:22.04.2022

 

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

            Member                       Member                     President

 

Note: Each and every page of this order has been duly signed by me.

 

                                                Satpal                                

President