Delhi

East Delhi

CC/97/2014

RAMESH GUPTA - Complainant(s)

Versus

MOBILE STORE - Opp.Party(s)

12 Feb 2014

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CC No.97/2014:

 

In the matter of :

 

Sh. Ramesh Gupta (Advocate)

S/o. Sh. Mahesh Chand

R/o. IX/2144, Gali No.8,

Kailash Nagar, Delhi – 110 031

Complainant

 

Vs.

 

1. M/s. Mobile Store Ltd.

    1/60, 60 Futta Road, Vishwas Nagar,

    Shahdara, Delhi – 110 032

 

2. M/s. The Mobile Care

    (Authorised Service Centre)

    B-36,  1^st   Floor, Guru Nanak Pura,

    (Opp. V3S Mall) Near Maharaja Banquet Hall,

    Laxmi Nagar, Delhi-110 092

 

3. Micromax Informatics Ltd.

    21/14A, Phase – II, Naraina Industrial Area,

New Delhi – 110 028                                                                                                                                                                                                                                        Respondents

 

Date of Admission : 12/02/2014

                                                                                    Date of Order          : 01/10/2015

 

ORDER

Poonam Malhotra, Member:

 

 

            The brief facts of the present complaint are that on 05/02/2013 the complainant purchased a Micromax Mobile handset Model No. A 30 with IMEI No.911247000257381 for a sum of Rs.4,259/- vide Bill No. 6114/5345694 dated 05/02/2013 from Respondent No.I. and it was carrying a warranty of one year from the date of its purchase.  It is alleged that from the very first day the mobile was defective and it developed varied defects, viz., auto switch on & off, hanging problem and USB not working.  It is alleged that on 05/06/2013 the said handset was submitted to Respondent No.II and it was returned back to him on 02/07/2013 but after sometime it again developed problem.   The said handset was submitted to Respondent No.II for the second time on 14/10/2013 but since then the handset has not been returned back to him.  The complainant has filed on record the photocopies of the jobsheets dated 14/10/2013 & 08/11/2013.  Despite several visits and telephonic complaints neither the grievance of the complainant has been redressed nor has he got any proper reply from the Respondent No.II.  It is in these circumstances that the complainant has prayed for refund of Rs. 4,259/-, the cost of the mobile handset, compensation of Rs.50,000/- for mental pain & agony and Rs.21,000/- towards the cost of litigation.

            Written Statement filed by Respondent No.III only wherein while admitting the fact of purchase of the handset in question all the allegations made in the complaint have been denied by the answering respondent.  It is contended that the complainant neither filed on record the copy of the Jobsheet vide which he alleges to have submitted the said handset to Respondent No.II on 05/06/2013 nor has he mentioned the number of the jobsheet for the said date in his complaint.  It is further contended that the complainant first approached its Authorized Service Centre on 14/10/2013 with the problem of application loss, the software was upgraded & the handset was returned to him.  Thereafter, on 08/11/2013 he again submitted the said handset but this time the problem was with the display touch and the handset was duly repaired by the Respondent No.II.   It is submitted that refund of the cost of the handset or replacement thereof is limited only to those cases where repair is not possible or in cases of repeated repairs. It is also contended by Respondent No.III that despite repeated calls by Respondent No.II to the complainant for the collection of the said handset he did not collect it.  It has denied the allegations of deficiency in service or unfair trade practice.

            Evidence by way of Affidavit filed by the complainant and affidavit of Sh. Mohd. Asad Shakeel filed on behalf of Respondent No.III in support of their respective cases.

            Heard and perused the record.

The fact of purchase of the handset in question is not in dispute.  It is alleged by the complainant that after purchasing the said handset on 05/02/2013 it started giving varied problems and on 05/06/2013 it was submitted by him to Respondent No.II for the rectification of the alleged defects.  On an indepth perusal of the record, it is evident from the record that the complainant has neither filed on record the jobsheet of 05/06/2013 in support of his allegation that the handset was submitted by him to Respondent No.II on 05/06/2013 nor is it the case of the complainant that the said jobsheet was taken back from him at the time of delivery of the handset to him on 02/07/2013.  Further, it is submitted by the complainant in Para 7 of the complaint that on 14/10/2013 he had submitted the handset for the second time to Respondent No.II and has not received it till date and also in the same para it is submitted by the complainant that the photocopy of the jobsheets dated 14/10/2013 and 08/11/2013 have been annexed with the complaint.  It is pertinent to mention here that this fact is admitted by the Respondent No.III that the handset was submitted by the complainant to Respondent No.II on 14/10/2013 & 08/11/2013.  It is, thus, farcical to believe that when the handset has not been returned to the complainant by the Respondent No.II ever after its submission to Respondent No.II on 14/10/2013 for the second time as alleged by the complainant in his complaint, then how the complainant can deposit the said handset with the Respondent No.II again on 08/11/2013.  In view of the above observations, there is not a scintilla of doubt that the handset was never submitted by the complainant to the Respondent No.II on 05/06/2013 and the same was deposited by him for the first time only on 14/10/2013 that is more than eight months after its purchase & thereafter for the second time on 08/11/2013 and not on 14/10/2013 as alleged by him in his complaint.  The averments made by the complainant in his complaint and reaffirmed on oath in his affidavit by way of evidence are themselves in strict contradiction to the documentary evidence file on record by him alongwith his complaint.  As such the allegations of the complainant that he had submitted the said handset to Respondent No.II on 05/06/2013 and that the said handset has not been returned to him by Respondent No.II ever after its submission on 14/10/2013 are, thus, not acceptable to us.  From the documents filed on record the complainant has, thus, failed to show that the mobile handset became defective shortly after its purchase. 

 

            Further, on threadbare perusal of the averments made in the complaint and the documents filed on record alongwith the complaint, a very clinching fact has come to light that though the complainant has filed on record a copy of his letter dated 04/01/2014 alleged to have been written to the respondents demanding the delivery of his handset but neither the fact of issuance of this letter has been mentioned by him in his complaint nor the postal/courier receipt with tracking report has been filed on record to substantiate the proof of service of the said letter on the respondents.  In these circumstances, the letter dated 04/01/2014 cannot be relied upon by us and is, thus, not acceptable to us.

It is alleged by the Respondent No.III that the handset has been duly repaired and is lying at its Authorized Service Centre, the Respondent No.II herein, and it is the complainant who has not come forward to collect.  However, the Respondent No.III has failed to file on record any convincing documentary evidence to substantiate its contention.  In the absence of any cogent documentary evidence in support of the contention of the Respondent No.III, the same is not acceptable to us.  Had there been some force in the contention of the Respondent No.III it would have brought the same before this Forum to substantiate its contention and for its delivery to the complainant to redress his grievance.  In these circumstances the contention of Respondent No.III is not tenable.  The fact that the Respondent No. II has not put up appearance in this case also gives strength to the fact that the handset the handset had become defective during the warranty period and it was suffering from defects that were beyond repairs.

Taking all the facts and circumstances into consideration, we direct the Respondent No.III to pay to the complainant Rs.3,000/- only within 45 days from the date of the delivery of this order towards the cost of the handset as it had been used for more than eight months from the date of its purchase and the complainant shall handover the original jobsheet against which he last submitted the handset to Respondent No.II alongwith all the accessories of the handset to Respondent No.III.  Since in the case in hand the complainant has not approached this Forum with clean hands and being an advocate has endeavoured to misuse the process of law for his unjust enrichment solely to seek the refund of the price of the handset etc. and not the redressal of his grievance or the removal of the defect in the handset and he has tried to misguide this Forum from arriving at a fair and judicious decision no order as to costs is being made. 

            Copy of the order to be sent to both the parties as per rules.  

(Poonam Malhotra)                                                                                               (N.A.Zaidi)            Member                                                                                                    President