Haryana

Yamunanagar

CC/495/2014

Sanjeev Kumar s/o Sh.Ram Niwas Gupta, - Complainant(s)

Versus

Mobile Mall - Opp.Party(s)

Sachin Bhardwaj

17 Mar 2016

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                    Complaint No. 495 of 2014

                                                                                    Date of Institution: 27.11.2014.

                                                                                    Date of Decision: 17.03.2016.

Sanjeev Kumar aged about 45 years son of Sh. Ram Niwas Gupta resident of Shankar Nagar, Jagadhri, District Yamuna Nagar.     

                                                                                                                        …Complainant.

                                    Versus

1. Mobile Mall, Mid Point Building, Pyara Chowk, Jagadhri Road, Yamuna Nagar through its Manager.
2. Shiv Communication, Authorized Service Centre of Karbon Mobile Phone, OPP. Bus Stand, Jagadhri, Distt. Yamuna Nagar through its Proprietor/ Partner/ Manager.
3. Karbonn Mobiles, Okhla, Phase-I, New Delhi 170011 through its Managing Director.

                                                                                                            …Respondents.

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Sachin Bhardwaj, Advocate, counsel for complainant.

              Sh. Sushil Garg, Advocate, counsel for respondent No.1.

              Sh. Brijesh Chauhan, Advocate, counsel for respondent No 3.

              Respondent No.2 already ex-parte vide order dated 11.12.2015

 

ORDER

 

1.                     Complainant  Sanjeev Kumar filed the present complaint under section 12 of the Consumer Protection 1986 praying therein that the respondents (hereinafter referred as OPs) be directed to replace the defective mobile set with new one of same cost or in the alternative to refund the cost of mobile set alongwith interest and further directed to pay compensation as well as litigation expenses. 

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant purchased a Karbonn Mobile S5 bearing IMEI No. 911309351890630 and 911309351890648 for a value of Rs. 11,100/- vide cash Bill No. 3199 dated 06.10.2013 (Annexure C-1) carrying warranty of one year from the Op No.1 manufactured by Op No.3 whose Service Centre is OP No.2. After purchase, the mobile set worked smoothly for some time as after some time, the said mobile phone stopped working. On this the complainant contacted the OP No.1 and told about the said defect. After checking, the OP No.1 told that the battery of said mobile phone is defective and the same was replaced by OP No.1 and charged a sum of Rs. 700/- despite having warranty. After replacement of battery, the mobile phone again became defective and the mobile phone completely stopped working On this, the complainant again approached the OP No.1 and requested to remove the defect of the said mobile phone. The OP No.1 told that they will send the said mobile phone to OP No.3 i.e. Manufacturer of the mobile phone as the defect in the said mobile phone is manufacturing defect and it could not be removed. Despite lapse of sufficient time period, the OPs failed to replace the defective mobile phone with new one. Hence, this complaint.   

3.                     Upon notice, OPs No.1 & 3 appeared but Op No.2 failed to appear, hence he was proceeded ex-parte vide order dated 11.12.2015. OP No.1 filed its written statement separately by taking same preliminary objections such as present complaint is wholly misconceived, groundless and unsustainable in law, not maintainable, no deficiency in service and on merit it has been alleged that the complaint is absolutely incorrect, wrong and hence denied. The OP No.1 is only authorized dealer of OP No.3 i.e. manufacturer, and every warranty upon new mobile set is given by the manufacturer for a specific period pertaining to any manufacturing defect during the warranty period and prayed for dismissal of complaint against the OP No.1.

4.                     OP No.3 filed its written statement by taking some preliminary objections such as complaint is legally not maintainable, no cause of action to file and maintain the present complaint, complainant has concealed the true and material facts from this Forum. The true facts are that the defective mobile handset of the complainant has been replaced but the complainant is refusing to accept the same and on merit reiterated the stand taken in the preliminary objections and prayed for dismissal of complaint. 

5.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and documents such as photo copy of Bill bearing No. 3199 dated 06.10.2013 as Annexure C-1, Photo copy of bill No.26 dated 5.6.2014 for Rs. 700/- issued by OP No.2 Service Centre as Annexure C-2, Photo copy of job sheet as Annexure C-3 and closed the evidence on behalf of complainant.    

6.                     On the other hand, counsel for the OPs No.1 & 3 failed to adduce any evidence despite so many opportunities, hence the evidence of the OPs No.1 & 3 is hereby closed by court order.     

7.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

8.                     It is an admitted case of the OPs that complainant purchased the mobile set of Rs. 11,100/- vide Bill No.3199 dated 06.10.2013 (Annexure C-1) from OP No.1 and handed over the mobile set in question to Service Centre (OP No.2) for repair whatsoever vide job sheet No. KJASPHR134914K1889 dated 15.09.2014(Annexure C-3). Further the Op No.3 has not specifically denied that OP No.2 i.e. Service Centre charged Rs 700/- from the complainant within warranty period and battery of the mobile set in question was replaced on 05.06.2014 and then mobile phone has again got defected and the job sheet qua the said mobile phone has been got prepared on 15.9.2014 and further it has been also admitted by Op No.2 that mobile set in question is still lying with them as the complainant refused to accept the replaced mobile. Meaning thereby that mobile phone in question of the complainant remained out of order due to one reason or other and complainant was forced to visit the service centre again and again. Now a days, mobile set becomes the necessity of the human being and without the mobile set a person feels himself as handicapped. Further the OP No. 2&3 totally failed to file any evidence or submit any affidavit of the Manager/Mechanic of the Service Centre that mobile set in question was not having any manufacturing defect whereas the version of the complainant is duly supported by his affidavit as well as copy of bill and job sheet.

9.                     In view of the circumstances noted above, we are of the considered view that there is a deficiency in service on the part of OPs No.2 &3. However, as the complainant had used the mobile set in question for the period of near about 7-8 months without any problem, so, the complainant is entitled to get refund after deducting depreciation.  Hence, we have no option except to partly allow the complaint of complainant and thus we direct the OPs No.2 & 3 to comply with the following directions within 45 days from the communication of this order.

(i)         To refund the amount of Rs. 8800/- being 80% of the total cost of the old mobile after deducting depreciation as the complainant had used the mobile set.  

2. To pay Rs. 1000/- as compensation for mental agony, harassment as well as litigation expenses

10.                   The aforesaid directions must be complied with by the OPs No.2 & 3 within the stipulated period otherwise all the aforesaid awarded amounts shall fetch further simple interest @ 9% per annum for the period of default. The complaint is decided accordingly in the above terms. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.17.03.2016.

                                                                        (ASHOK KUMAR GARG)

                                                                        PRESIDENT

 

                        (S.C.SHARMA    )

                        MEMBER