BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.354 of 2016
Date of Instt. 17.08.2016
Date of Decision: 27.06.2018
Sunil Kumar Age 34 Years S/o Rama Shankar, H. No.113/1, Hargobind Nagar, Nr. Bye Pass, Jalandhar 144012 Mobile No.9781820733.
..........Complainant
Versus
1. Mobile House, Yadav Electronics Pvt. Ltd. Hargovind Nagar, Jalandhar Through its Director/Authorized Representative.
2. Gopal Telecom Service Centre, 1st Floor, Nirmal Complex, Namdev Chowk, Jalandhar.
3. Carbon Informatics Ltd. D-170, Okhla, Industrial Area, Phase-I, New Delhi-110020 Through its MD/Director/Authorized Representative.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Sh. Vinod Kumar Shukla, on behalf of the Complainant.
None for Opposite Party No.1.
Sh. Vishal Chaudhary, Adv Counsel for the OP No.2 & 3.
Order
Harvimal Dogra (Member)
1. This complaint is presented by the complainant Sunil Kumar against the OPs Mobile House and Others. The brief facts of the case are that the complainant purchased a mobile handset make Carbon Titanium S-21, bearing IMEI No.911465251208263 for Rs.4000/- from OP No.1, vide Invoice No.079 dated 03.03.2016. That one year warranty was given by the OPs for the above said mobile handset. At the time of sale, the OPs also assured the complainant that in case of any problem or defect in the said handset, the same will be rectified immediately by service centre/OP No.2 or the handset would be replaced if the repair is not done satisfactory.
2. That the handset became out of order and various defects arose in it. The handset started heating up and also failed to work. That the office of the OP No.l and 2 are situated at Jalandhar and OP No.3 is a manufacturer of the said mobile handset and carrying the business under trade mark of Carbon Tatanium S-21. That all the parties fall under the jurisdiction of this Forum and this Forum is competent to entertain, try and decide the present complaint. That due to non removal of defects/non replacement/non return of the said mobile phone, the complainant has suffered a lot of mental tension, harassment and financial loss. Lastly, the complainant has prayed to direct the OPs to replace the mobile set with new one or in the alternative to refund the cost of mobile handset as per bill with interest 12% per annum from the date of purchase and further to pay the cost of litigation of Rs.2500/- and to give the compensation of Rs.60,000/- for mental tension and harassment and any other relief, which the Forum deems fit may be given to the complainant.
3. After the formal admission of the complaint, notice was given to the OPs. OP No.1, who is director appeared in person and filed written reply in which he has stated that he is running a shop titled as “Mobile House, Yadav Electronics Pvt. Ltd.”. Sunil Kumar purchased one mobile handset, whose IMEI No.911465251208263 dated 03.03.2016 from him. After 15-20 days, the mobile phone started giving problem. He deposited his mobile with OP No.2 on 30.03.2016. OP No.1 further stated that the warranty of one year was given by the OP No.2. He further stated that he is just a dealer and he is running a shop. He is not liable if the mobile handset is not working.
4. OP No.2 and 3 appeared through its counsel and filed joint written reply, whereby contested the compliant by taking preliminary objections that the present complaint is not maintainable in the present form, as the same is based upon wrong, false and frivolous facts. That the complainant is not entitled to any claim or to get any relief claimed therein. The complaint in reply is not maintainable in law or on the true facts and the same is liable to be dismissed. It is further alleged that the complaint is ex-facie misconceived, vexatious, untenable and devoid of any merit and complainant has made this complaint in order to raise a premeditated, false and frivolous prosecution. That the complainant has failed to disclose all the facts before this Forum, which if disclosed would have indicated that there is no cause of action in favour of the complainant against the answering OP. The facts narrated by the OPs are that the complainant has purchased the handset on 03.03.2016 and from that date the handset was working properly and there was no defect in the handset, but the complainant in order to harass and pressurized the OPs filed the present complaint by misusing the process of law and the complainant was very eager to deposit the handset and visited the office of answering OP on 01.04.2016 and booked his handset and answering OP after making necessary repair i.e. regarding software of handset called the complainant several times to collect his handset but the complainant never turned back to receive the said handset from the answering OPs and has filed the present false and frivolous complaint and only on this score the present complaint is liable to be dismissed with heavy costs. It is further alleged that the complainant has no true grievance or valid cause of action qua the answering OP. The complaint is baseless and is flagrant abuse of process of law to harass and blackmail the answering OP. It is further alleged that no cause of action accrued to the complainant to file the present complaint, hence the complaint of the complainant deserves to be dismissed. On merits, all the averments made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
5. In order to prove the case of the complainant, the complainant himself tendered into evidence his duly sworn affidavit Ex.CA along with some documents Ex.C-1 Aadhar Card, Mark C-2 & Mark C-3 Copy of Emails, Mark C-4 Copy of Bill/Cash Memo, Mark C-5 Receipt of Gopal Telecom and then closed the evidence.
6. Similarly, Proprietor of OP No.1 Sh. Laldeep Rai tendered into evidence his duly sworn affidavit Ex.OP1/A and closed the evidence and counsel for the OP No.2 and 3 tendered into evidence affidavit Ex.OP/A and closed the evidence.
7. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
8. After going through the facts of the case, it has become crystal clear that the complainant purchased one mobile handset make Carbon Titanium S-21 from OP No.1 vide Invoice Ex.C-4 dated 03.03.2016. Now the main issues for consideration are whether OPs are negligent and deficient in their service and secondly, whether OP No.1, who is a dealer is liable for the deficiency in service or not.
9. The main contention of the complainant is that the mobile started heating up and also failed to work within warranty period. The complainant deposited the mobile with the service station and Job Sheet Mark C-5 was given to the complainant. The mobile is still in the custody of OPs.
10. On the other hand, OP No.2 has stated in the written reply that the handset was repaired and they called the complainant several time to collect his handset, but the complainant never turned back to receive the said handset and in return filed the present false complaint, but there is no evidence on record to show that the OPs had given any intimation regarding repair of the mobile to the complainant. The complainant had made many complaints through emails Mark C-2 and Mark C-3 and also enquired when the mobile phone will be rectified and returned back to the complainant. But every time, the OPs made excuses that the part is not available and till today, the mobile is neither repaired nor returned to the complainant and said mobile is still in the custody of OPs. So, we can say that the OPs are lingering the matter on one pretext or the other. The complainant is suffering in the hands of OPs. All the OPs are equally liable for the deficiency as OP No.1 cannot shed his liability that he is a dealer and is not liable if the mobile handset is not working. We are of the considered view that the dealer is also equally liable as he has sold the defective handset to the complainant.
11. So, under these circumstances, we find force in the arguments put forth by the complainant and there is deficiency in service and unfair trade practice on the part of the OPs. Therefore, the complaint of the complainant is partly accepted and OPs are directed to refund the cost of the mobile i.e. Rs.4000/- and the OPs are further directed to pay Rs.3000/- as a compensation for harassment and mental agony and Rs.2000/- as litigation expenses to the complainant. The entire compliance be made within one month from the date of receipt of the copy of order, failing which the OPs will be liable to pay 12% interest on the amount from the date of filing complaint, till realization. This complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Harvimal Dogra Karnail Singh
27.06.2018 Member President
